Keller Manufacturing Co., Inc

KELLER MFG CO 763 Keller Manufacturing Company, Inc and Doris M Conrad and General Drivers, Warehousemen and Helpers Local Union No 89, affiliated with International Brotherhood of Teamsters, Chauf feurs, Warehousemen and Helpers of America Cases 25-CA-9702-1 25-CA-10106-2 25- CA-10106--3 25-CA-10436 and 25-CA-10639 15 October 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 27 July 1981 Administrative Law Judge Robert A Gntta issued the attached decision The Respondent and the General Counsel filed excep tions and supporting briefs and the Respondent filed an answering brief to the General Counsel s exceptions The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge s rulings findings ' and conclusions only to the extent consistent with the Decision and Order The judge found that the Respondent construc tively discharged employee Billy G Patton in vio lation of Section 8(a)(3) and (1) We find merit in the Respondent s exceptions and shall dismiss this allegation The Respondent employs approximately 600 em ployees in its furniture manufacturing facilities in Corydon and New Salisbury Indiana In October 1977 the Board certified the Union as the collec tive bargaining representative of the production and maintenance employees in those facilities and 1 We agree with the judge that the Respondent did not unlawfully insist on a notification clause particularly since the evidence shows that the Union first proposed such a clause We thus find it unnecessary to reach the question of whether the judge erred in refusing to admit a copy of the Respondent s 1975 contract with another union which contained a similar clause since the result would not be altered by that document In adopting the judge s findings we also place no reliance on Cross 12 May telephone conversation with union official Manon Winstead We further agree with the judge that the Respondent did not unlawful ly deny vacation benefits to strikers but we do not rely on the distinction drawn by the judge as to whether the loss of vacation pay is indirectly the consequence or a direct consequence of engaging in protected ac tivity The judge cited PPG Industries 251 NLRB 1146 (1980) at fn 5 of his decision We note that in Rossmore House 269 NLRB 1176 (1984) the Board overruled that case to the extent that it found that an employer s questioning of open and active union supporters about their union sent' ments in the absence of threats or promises necessarily interferes with restrains or coerces employees in violation of Sec 8(a)(1) For the rea sons stated in his dissenting opinion in Rossmore House Member Zimmer man would have adhered to PPG Industries from 13 May to 27 November 1978 the unit em ployees engaged in an economic strike 2 Patton was one of the striking employees and the judge found that he engaged in picketing at various times 3 Prior to the strike Patton operated the 3 belt sander machine on the night shift at the New Salisbury facility When Patton offered to return to work at the end of the strike he told the Respondent s personnel manager Gettelfinger that he preferred a job on the day shift because his wife was pregnant and feared being alone at night 4 A few days later Gettelfinger offered Patton a posi tion as a rip saw offbearer on the night shift Patton asked why he could not simply return to his prestrike job if work was available only on the night shift and Gettelfinger replied that a striker replacement still occupied that position Approxi mately 2 weeks later Patton bid for and obtained a job as a rip saw operator on the night shift and he remained in that position until February 1979 During that time Patton unsuccessfully bid for day shift positions In February 1979 Patton bid for and obtained a day shift subassembly position and he informed the Respondent s new personnel manager Abell 5 that the job was exactly what he wanted Patton worked on the day shift until 21 March 1979 when Abell told him to resume working on his prestrike night shift job which had recently been vacated by the striker replacement Patton indicated that he did not want the job but Abell stated that the 3 belt sander was a crucial machine which only Patton could operate productively According to Abell Patton again stated that he could not work nights because his wife wapregnant and did not want to be alone in the evening Patton asked whether he could train another employee on the machine or whether he could change shifts with the employee who operated the machine during the day Abell responded negatively and Patton asked whether all returning strikers were being forced to return to their prestrike positions Abell stated that the Respondent was requiring Patton to return to his former job even though it was simply making offers to the other returning strikers According to 2 The record does not establish the precise number of strikers but it is clear that hundreds of employees participated in the strike The judge found that at the end of the strike the Union submitted a list of 565 stnk ers who desired reinstatement The Respondent s list placed the number at 381 and testimony at the hearing established that between 200-250 strikers actually appeared at the plant to request reinstatement 3 The judge also found that Patton had previously attended several union meetings and had signed an authorization card 4 The judge noted that there are conflicting versions of the circum stances surrounding Patton s alleged constructive discharge We shall consider only those facts which are most favorable to Patton s position 5 Abell replaced Gettelfinger as the Respondent s personnel manager on 15 January 1979 272 NLRB No 118 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Abell Patton stated that he would have to quit be cause he was unable to work the night shift Patton refused to accept the transfer but Abell suggested that he discuss the issue with his wife over the next several days On the following morning Patton informed Abell that his wife still did not want him to work on the night shift Abell again told Patton to go home and think about it but stated that the Respondent would conclude that he had quit if he did not report for work on the night shift at 4 p m that evening On the same day Patton s foreman Brown advised him to return to work on the 3 belt sander and the Respondent s vice president of per sonnel Stepro told him that he would have to do so Patton left the plant and did not report to work on the night shift The judge found that the Respondent s attempt to transfer Patton amounted to a constructive dis charge since Patton had told the Respondent that his wife feared being alone at night and that he would quit if forced to accept a position on the night shift The judge also found that the Respond ent was more occupied with Patton s situation than that of any other striker and he concluded that Patton s participation in the strike was the motive for his constructive discharge 6 In Crystal Princeton Refining Co 222 NLRB 1068 1069 (1976) the Board defined the elements of an unlawful constructive discharge There are two elements which must be proven to establish a constructive discharge First the burdens imposed upon the employee must cause and be intended to cause a change in his working conditions so difficult or unpleas ant as to force him to resign Second it must be shown that those burdens were imposed be cause of the employee s union activities 7 Even if we assume arguendo that a transfer to the night shift can be characterized as a burden we find no evidence that the Respondent intended to cause Patton to resign On the contrary the record demonstrates that the Respondent exhibited pa hence with Patton s reluctance to accept his pres trike position We note that Patton flatly refused 6 The judge found that the Respondent established three conditions which a returning striker must satisfy before he would be permitted to remain on a job other than his prestnke Job (1) the employee must be needed more on his current assignment than on his prestnke job (2) the employee did not want to return to his prestrike job and (3) the employ ee who remained on his current assignment did not block the return of another striker to his prestrike job The judge concluded that Patton sat 'stied the three conditions and from this conclusion in part he drew the inference that the Respondent was unlawfully motivated when it insisted that Patton return to his prestrike job 7 See also Valley West Welding Co 265 NLRB 1597 1599 (1982) Boyles Galvanizing Co 239 NLRB 530 540 (1978) Abell s initial attempt to transfer him 'stating that he would quit rather than return to the night shift Instead of promptly seizing on and accepting that refusal Abell suggested that Patton go home and discuss the issue further with his wife When Patton reported on the following morning that his wife still opposed his return to the night shift Abell once again declined to accept his refusal and instructed him to return home and give further thought to the issue We find that Abell s conduct does not demon strate an intent to force Patton to resign his em ployment If Abell had been seeking to force Pat ton s resignation it is reasonable to assume that he would have accepted either of Patton s two refus als to transfer to the job he originally held Instead on each occasion Abell instructed Patton to give the matter further consideration The more reason able inference to be drawn is that Abell hoped that Patton would change his mind and accept the transfer to the night shift We also disagree with the judge s finding that because of Patton s prior statements the Respond ent was fully aware that he would resign rather than accept the transfer The judge noted that on 21 March 1979 Patton told Abell that a night shift assignment would force him to quit However the record establishes that Patton did not make this statement until after the Respondent s decision to transfer him had already been made and after Abell had informed Patton of the decision Additionally the judge emphasized that at all times the Respond ent was aware of Patton s statements that he pre ferred day work because of his wife s situation We find it significant that in spite of those statements Patton accepted work on the night shift soon after the strike ended and remained there for approxi mately 2 months Patton s conduct thus conveyed the message that he would accept work on the night shift albeit with some reluctance Conse quently Patton s prior statements do not support the judge s conclusion that at the time of its dem sion the Respondent had reason to believe that Patton would quit rather than accept a transfer to the night shift We also find no evidence that the Respondent s motive was to retaliate against Patton for his par ticipation in the strike We begin by noting the judge s own finding that the Respondent welcomed the return of the strikers and that it recognized its legal obligations in connection with their reinstate ment It is against this background that we consid er the judge s additional finding that the Respond ent was more occupied with Patton than any other striker and attempted to transfer him because of his participation in the strike In essence the judge KELLER MFG CO 765 found that the Respondent selected Patton alone for retaliation among the hundreds of employees who engaged in the strike The judge cites little evidence to explain why the Respondent would have been so occupied with Patton and the evidence in fact points to a differ ent conclusion The record establishes only that Patton engaged in some picketing attended several union meetings and signed an authorization card We do not suggest that an employee who engages in limited union activity may never be the object of discrimination nor do we suggest that one employ ee among many may never,be singled out for retal tation In the circumstances of this case however we find no support for the judge s conclusion that Patton s limited union activity provoked the Re spondent to retaliate against him 'alone while it si multaneously welcomed the return of the hundreds of other strikers whose activities were indistin guishable Our conclusion that the judge erred is especially warranted in view of the absence of ac companymg unfair labor practices or other evi dence of animus in this case We also fail to see any significance in Abell s statement that Patton was required to resume working in his prestrike position while other stnk ers were simply given an offer We are unwilling to infer from this requirement that the Respondent was retaliating against Patton for his participation in the strike The record contains no evidence that the Respondent s motive was inconsistent with Abell s statement that the 3 belt sander was a cru cial machine and that Patton was the only employ ee who knew how to operate it 8 In view of the foregoing we find that the Gen eral Counsel has not met its prima facie burden of establishing that the Respondent intended to cause Patton to resign and that Patton s union activity was a motivating factor 9 in the Respondent s deci sion to transfer him to the night shift Because the judge found no other violations of the Act 'we sh'all order that the complaint be dismissed ORDER The complaint is dismissed 8 As noted above the Judge also found that Patton satisfied the three conditions which the Respondent required before permitting an employee to remain in a position other than his prestrike position Even if we assume arguendo that the Judge s finding is correct we do not agree that an inference of unlawful motive is warranted by this finding In the absence-of accompanying unfair labor practices or other background evi dence of animus and in the absence of more direct evidence of an unlaw ful motive we see no significance in the Judge s finding that Patton satis fled the three requirements 9 Wright Line 251 NLRB 1083 1089 (1980) DECISION STATEMENT OF THE CASE ROBERT A GRITTA Administrative Law Judge This case was heard on 28 separate days during March April May and July 1979 based on charges filed by General Drivers Warehousemen and Helpers Local Union No 89 affiliated with International Brotherhood of Team sters Chauffeurs Warehousemen and Helpers of Amer ica and Doris M Conrad an individual (Teamsters and Conrad respectively) on various dates in March August and December 1978 and four separate corn plaints issued by the Regional Director or Acting Re gional Director for Region 25 of the National Labor Re lations Board in April and September 1978 and January and February 1979 The complaints allege that Keller Manufacturing Company Inc (the Respondent) violated Section 8(a)(1) (3) and (5) of the Act by coercive inter rogations threats warnings discriminatory discipline and withholding of pay to strikers failure to reinstate re turning strikers unlawful discharges and refusing to bar gain in good faith with the Teamsters The Respondent s timely answer denied the commission of any unfair labor practices All parties were afforded full opportunity to be heard to examine and cross examine witnesses to introduce evi dence and to argue orally Briefs were submitted by the General Counsel and the Respondent Both briefs were duly considered On the entire record in this case and from my observa tion of the witnesses and their demeanor on the witness stand and on substantive reliable evidence considered along with the consistency and inherent probability of testimony I make the following FINDINGS OF FACT / I JURISDICTION—STATUS OF LABOR ORGANIZATION—PRELIMINARY CONCLUSIONS OF LAW The complaints allege the Respondent admits and I find that Keller Manufacturing Company Inc is an Indi ana corporation engaged in the manufacture and sale of furniture products in Corydon and New Salisbury Indi ana Jurisdiction is not in issue The Respondent in the past 12 months in the course and conduct of its business operations purchased and received at its Indiana facili ties goods and materials valued in excess of $50 000 di rectly from points located outside the State of Indiana I conclude and find that Keller Manufacturing Company Inc is an employer engaged in commerce and in oper ations affecting commerce within the meaning of Section 2(2) (6) and (7) of the Act The complaints allege the Respondent admits and I conclude and find that General Drivers Warehousemen and Helpers Local Union No 89 affiliated with Interna tonal Brotherhood of Teamsters Chauffeurs Warehou semen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act All dates herein are in 1978 unless otherwise specified 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II PRELIMINARY OVERVIEW also contends that the Respondent s negotiation with the Teamsters was in bad faith and violative of the Act A Issues The issues in these cases rest on the Respondent s con duct subsequent to the successful organizing campaign of the Teamsters with the exceptions of Conrad s charge of discnmination and the General Counsel s theory and ar gument that past conduct of the Respondent in relation to the Teamsters and the previous representative of the employees the Carpenters are part and parcel of the total package of violative conduct by the Respondent My determination of the various allegations of the General Counsel s complaints and any collateral issues is guided by certain pnnciples of law Thus I recognize that the burden of proof rests on the General Counsel and can only be sustained by a preponderance of the evi dence Further the discrediting of any of the Respond ent s evidence does not without more constitute affirma live evidence capable of supporting the General Coun sel s obligation to prove his case If the General Counsel supports his case with substantial evidence and the Re spondent fails to counter with affirmative evidence of its own then the General Counsel shall prevail This burden of proof never shifts to the Respondent nor is any onus imposed on the Respondent to disprove any allegation pleaded in the several complaints B Background and Chronology The Respondent employs in excess of 600 employees in two separate manufacturing facilities in the contiguous cities of Corydon and New Salisbury Indiana Although not identical the products manufactured in each are sub stantially the same In any event the methods of manu facture the classifications of employees and the job func lions in each plant where duplicated are identical Following an organizing campaign by the Teamsters and an election in February 1977 the Board issued its certification in October 1977 2 Subsequently unfair labor practices were found to have occurred during the cam paign and a remedial order was issued by the Board 3 The parties thereafter began collective bargaining One employee Conrad who was discharged during the progress of negotiations filed a discrimination charge The parties negotiated with little incident through May 13 at which time the employees went on strike The annual plant shutdown and vacation week were sched uled in May and observed in July The strike lasted until November 27 when all employees wishing to return were put back to work Both during and after the strike several employees were discharged The General Coun sel contends that five such discharges violate the Act Further acts of discrimination are alleged by the General Counsel to have occurred prior to during and after the stnke in conjunction with various forms of interference with employees statutory rights The General Counsel 2 The unit is All production and maintenance employees of the Respondent em ployed at its Corydon Indiana and New Salisbury Indiana facilities exclusive of office clerical employees all salesmen all professional employees guards and all supervisors as defined in the Act a Keller Mfg Co 237 NLRB 712 (1978) III THE ALLEGED UNFAIR LABOR PRACTICES A 8(a)(1) Violations 1 Interrogation Bube testified that he was employed by the Respond ent March 7 1978 to February 9 1979 Within a month of employment he was made foreman in the lumberyard at New Salisbury Shortly thereafter in April Bube at tended a supervisors meeting conducted by Plant Man ager Heishman and Personnel Manager Gettelfinger Gettelfinger told the assembled foremen to ascertain how many employees might work if the Union did call its planned strike Bube recalled that Gettelfinger said without actually asking each person are you or are you not going to be involved in the strike merely to talk to the people and find out how they would be going out on strike or not Bube stated that the people in his depart ment were very outspoken in their sympathy for the strike Bube testified that he did speak to two employees I said to them did they know or did they realize that there s a very good possibility of a strike coming up before long Mathes said yes and Barr said he thought so I asked these fellows if they felt like—well for in stance if they would be involved in the strike to an extent that they would not report back to work until the end of it 4 On cross Bube stated that he followed Get telfinger s instructions to list employees who were inter ested or not interested in striking but to not question em ployees directly Bube s affidavit contains a single state ment relative to the allegation of interrogation to wit We had weekly foremen meetings with management Sometime before the strike Gettelfinger and Heishman instructed us foremen to decide which of our employees were most for the Union and how many employees would join a strike and to report that Analysis and Conclusion The Bube testimony was offered in part to support an amendment to the complaint in Cases 25-CA-10106-2 and 25-CA-10106-3 involving two subparagraphs 5(e) and 6(d) Subparagraph 5(e) alleges that Bube interrogat ed employees concerning their union and/or protected activities Subparagraph 6(d) alleges the Respondent by its following named supervisor and agent at the New Salisbury facility requested and urged its foremen em ployees to engage in interrogation concerning the pro tected concerted activities of its employees on or about the date April 1978 by Leo Gettelfinger and Robert Byrd Although the substantiality of subparagraph 6(d) was questioned it was allowed with a request for speed lc briefing The General Counsel cites no cases in sup port of his theory that the supervisory conversation sum manzed above constitutes a violation of Section 8(a)(1) of the Act It was no violation of the Act for Gettel finger to be concerned about manpower in the event of a 4 Neither employee was called to testify KELLER MFG CO 767 strike by employees and to enlist the aid of other super visors to appraise the situation does not change the nature of his concern Apparently the General Counsel views the alleged vice as Bube s implementation of man agement s concern via interrogation thus showing that management s original concern was actually an order to violate employees protected rights The General Counsel argues that management told its foremen to inquire of employees and that Bube did inquire and ascertained that two of his employees would go on strike I find no evidence supporting such a characterization for argu ment Bube stated that Gettelfinger specifically told the foremen not to ask the employees if they were going on strike Bube s department was prounion and openly dis played their sympathy for striking with the exception of two employees (contrary to the General Counsel s repre sentation of the facts) Bube undoubtedly hoped to rank the two employees among one group or the other as re quested by Gettelfinger and apparently was unable to do so without some aid Bube did converse with these em ployees but whether he questioned them in a coercive manner cannot be gleaned from the record Even unso phisticated employees know that management has some fear of a strike and how the plant will operate without them Bube s testimony shows that the majority of his employees forced the issue with management by their open display of strike sympathy At best Bube s testimo ny of his conversation with the employees is conclusion ary and thus not probative of the General Counsel s alle gation Such disguised questioning if at all questioning hardly approached the stature of unlawful interrogation It would be normal to ascribe a conversation such as Bube had with his employees to legitimate concern rather than to unlawful coercive prying by manage ment 5 Additionally no evidence is contained in the record linking Robert Byrd to the meeting of supervisors although the record does mention a plant manager Heishman as taking part in the critical supervisors meet ing In view of the above I conclude that Gettelfinger did not order or require supervisors to coercively inter rogate employees nor did Bube pursuant to the supervi sors meeting engage in unlawful interrogation of his employees I find therefore that the Respondent has not violated the Act and will recommend dismissal of said al legation 2 Threats to employees a The June 7 letter6 Gilliland testified on reviewing the exhibit that she received a similar letter in the mail about hiring people to fill the places of the stnking employees Snyder testified on reviewing the exhibit that she also received one like it Sizemore testified that she received a letter just like the exhibit by mail between June 7 and 10 The General Counsel then offered the exhibit through Sizemore The 5 The Instant case is much like that presented by alleged questioning of employees in PPG Industries 251 NLRB 1146 (1980) 6 Received in evidence as G C Exh 46 Respondent voiced no objection and the exhibit was re ceived into the record Barnum testified that she received such a letter in the mail from Keller sometime in June b Company warning through several supervisors to returning strikers that they must wait for replacements to leave to get their former job on various dates between November 27 and December 13 Gilliland testified that she asked Plant Manager Dick Chnstley on December 13 as he came through her de partment when she would get her old job back Christ ley told her that her job was bid by Mary Frances Porter during the strike and she is working it Chnstley told Gilliland that her job was unavailable because of Porter 7 On the same day Gilliland asked her foreman Bill Brandenburg when she would get her job back Brandenburg said when anything came open that was similar to her old job she would get it Wenmng testified to two conversations with supervi sors on December 7 concerning if and when she would get her old job back Her prestrike foreman Karaffa who was promoted to superintendent told her she had been permanently replaced during the strike but if her job was ever available she would have the first chance at it Cova Bates foreman over inspection said Well you was replaced permanently during the strike and if the job is ever open they 11 let you have a chance at it Haub testified that when she was in the group on No vember 28 awaiting reinstatement Bob Byrd told the four inspectors present that permanent replacements were filling the four positions When the striking inspec tors did return to their old positions they would have to do so by seniority Byrd told Haub that he would get in touch with her in a couple days and that somebody was presently doing her job c Supervisor John Hoback on an unknown date in June warned strikers that they would not be reinstated to their positions at the end of the strike d Supervisor Leo Gettelfinger on December I warned strikers that they would not be reinstated to their former posztions8 Analysis and Conclusions The evidence discloses that a letter on the Respond ent s letterhead relative to the strike in progress was re ceived through the mail by several striking employees The substance of the letter was identical to the Respond ent s legal position extant during the strike and thereaf ter Moreover the Respondent s actions with reference to permanent replacements and returning strikers is in keeping with the policy outlined in the letter Further when the exhibit was offered by the General Counsel for Gilliland testified to a conversation she had with Linda Rothrock rel alive to a statement of Dick Chnstley s but the General Counsel dis avowed the testimony as what Chnstley said Rothrock did not testify to any statement by Chnstley 8 The General Counsel did not offer any evidence to support the alle gations 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD receipt into the record the Respondent voiced no objec non I conclude and find the Respondent s protestations to the contrary that the June 7 letter was authored by the Respondent for circulation among its employees in cluding strikers was circulated and expressed the policy to be followed The General Counsel alleges that the letter threatened employees with discharge by permanent replacement during the strike It is well settled that an employer when faced with an economic strike has the right to continue his business by hiring permanent re placements The employer has no duty to terminate those replacements at the conclusion of such a strike Likewise the employer can advise striking employees beforehand of his intention to do so 9 The General Counsel has not cited a case in support of his allegation nor did he pose any argument in his brief I therefore conclude and find that the Respondent s use of the letter is permissible under the circumstances and does not constitute a threat of discharge to striking employees Cf San Jeronimo Hilton Hotel 187 NLRB 947 (1971) wherein a similar notice was found deliberately calculated to interfere with employees Section 7 rights because the representation that employees had been permanently replaced was false Also see Piezo Technology 253 NLRB 900 (1980) where the employer included among statements of his legal rights of replacement during an economic strike You are no longer an employee of this company if replaced during the strike The Board found the statement a threat to employees that if they engaged in an economic strike and were replaced they will lose their status as employees The Respondent s actions at the conclusion of the strike confirms the genuineness of the Respondent s desire to continue its business within its legal rights There is no evidence to imply otherwise directly or in directly In view of my finding below I do not decide the effect of the letter in an atmosphere of an unfair labor practice strike The General Counsel s complaint alleges that eight su pervisors of the Respondent on various dates in Novem her and December warned returned striking employees that they would have to wait for strike replacements to leave voluntarily before their former jobs would be available The evidence shows that any returning striker whose position was not occupied returned to their pres mice position Strikers whose positions were occupied by replacements were placed in their prestrike department on a similar job if possible and were told that if the re placement left or a vacancy occurred they would be placed in their prestrike position In a large number of cases that is exactly what took place when vacancies arose The General Counsel offered evidence to support only three alleged supervisors conduct making no effort on the remaining five Considering all the evidence I conclude and find that the Respondent has not engaged in Interference restraint or coercion by restating its legal rights to returning strikers nor has the Respondent engaged in any conduct implementing those rights which constitutes a violation of the Act 9 Guyan Machinery Co 155 NLRB 591 (1965) The absence of any evidence to support the separate allegations against John Hoback and Leo Gettelfinger relative to reinstatement of returning strikers dictates dis missal of each allegation and I will so recommend 3 Reprisals for strike activity a The incident of truck vs car About June 1 an independent carrier was leaving the New Salisbury plant with a loaded trailer destined for Culpepper Virginia In keeping with the Respondent s practice Marvin Miller vice president of engineering was escorting the truck to the interstate highway Ap proximately 200 yards out from the plant on the county road Miller saw Moxley in his car waiting on the side of the road Miller testified that he had previously told the truck driver that Moxley was the union representative and may initiate an encounter As Miller passed Moxley he radioed to the truck driver This is the man we ve been looking for After Miller passed him Moxley pulled in between the truck and Miller Cassie Barnum driving her car was behind the truck Thus the truck was sandwiched between Moxley and Barnum Miller was somewhat ahead of the truck and pulled off the road to wait for the truck to catch up As the three vehicle caravan approached Miller Barnum turned off the road in the vicinity of Miller Miller then pulled back onto the road behind the truck and Barnum pulled in behind Miller Both Miller and the truck were then sandwiched between Moxley and Barnum The caravan was alternat ing speeds of 20 m p h up to 30 m p h on the county road which is limited to 30 m p h When the caravan reached the state road the limit was 55 m p h For sever al hundred yards the caravan first accelerated then slowed on the state road but shortly the truck pulled into the passing lane and passed Moxley s car The truck returned to the right lane of traffic before it had corn plete clearance This caused Moxley to move to the shoulder of the roadway so the truck could safely reen ter the right lane Moxley then pulled in behind the truck and followed for several miles then accelerated and passed the truck assuming the lead position once again Moxley pulled off the road within several more miles and allowed the truck Miller and Barnum to enter the interstate highway 10 b Changes in the standards of production and work rules after the strike In response to a question concerning conversations about work standards for the employees after the strike Bube testified In regards to—well we had piece rates set up on many jobs in the plant and in my department we ° There is little dispute between the Miller and Moxley version of the incident Barnum differs from both in several particulars but it was obvi ous to me that Barnum was attempting to minimize the influence of the strike on her and Moxley s vehicular conduct whereas attempting to maximize the usual strike conflict between pickets and common carriers I therefore have discredited Barnum where her testimony conflicted with Miller and Moxley KELLER MFG CO 769 had the piece rate system on stacking lumber and on offbearer inspection Now on these jobs they are rated and they have what they call 100 percent or 120 percent piece rate that they should be able to obtain And we were—you know we are required to try to keep the employees as close to 120 per cent We (the foremen) had received instructions that we are you know supposed to keep these people up as close to 120 percent production as we can keep them for their own benefit and for the company s benefit In the first week of January Bube conversed with Su pervisors Chnstley and Wolfe about two of his employ ees Forbes and Lewis who were consistently on the low earners report as achieving less than 100 percent production Forbes had been hired as a replacement whereas Lewis was hired before the strike Their pro duction was roughly 65 percent and they had a high ab senteeism Bube stated that he had tried previously to get the employees dismissed during their 45 day probation ary period During this conversation Christley said the absenteeism was not all that bad and the Company should help the employees a little bit now because they had helped the Company during the strike Bube said he agreed with helping the two employees but when the figures were down in black and white they affected his overall production as foreman and could cause him to miss a raise at the end of the year Jim Wolfe told Bube that during a strike situation 65 percent is better than nothing and the employees helped the Company once and might do it again if they were needed Christley also told Bube that in addition to production he is judged by management on his turnover If Lewis or Forbes were dismissed they would count as turnover against his rating but employees who had engaged in the stnke when they quit or are dismissed would not count as turnover Bube stated that on January 24 a replacement employ ee Eddie Hardesty assaulted a returned striker employ ee Bettorf Witnesses to the incident were employees Roscoe Shumaker Bobby Duke and Melvin Stone cipher " Bube was not working that day but Bettorf called him at home to report the assault The next day Bube spoke to Wolfe by phone and Wolfe stated that he wanted to go over the whole thing before acting on it Bube told Wolfe From what I ve heard Hardesty should be fired Wolfe repeated that they should talk with Chnstley and go over the whole thing to find out for sure what happened Later Bube suggested to Christ ley that Hardesty be reprimanded but Chnstley said to just write him up Bube expressed his thought that the man should be fired for violating the company rules Bube nonetheless wrote up the oral warning citing wast ing time on the job causing unallowed downtime on an other person s job and attacking another person at work Bube presented the wnteup to Wolfe who signed it then 13ube took it to personnel Bube was informed that Chnstley had to okay the discipline for it to become ef fective Bube checked with personnel on February 7 and learned that Chnstley had not as yet authorized the dis cipline Chnstley told Bube in response to Bube s inquiry that he wanted to talk to Hardesty before acting on the warning Bube never heard anymore about the incident Bube further testified that a striking employee J B Farrell while working kicked a hard hat that was in his way Later he stumbled over the same hat and picked it up and threw it in the direction of other working em ployees Bube admonished him that his actions were unsafe and he could get in trouble for such conduct Later when recalling the incident to Chnstley Chnstley told Bube that he should have written Farrell up for the incident Bube related that Cnstley said if Farrell contin ued with such outbursts or became insubordinate he could be dismissed and his dismissal would not be charged as turnover to Bube at the end of the year Bube also recalled responding to an employee Pierce s ques ton as to why nonstrikers were rarely disciplined Bube told the employee that Chnstley and Wolfe told him not to discipline the nonstrikers as he would normally 12 Another incident involved damage to a vending ma chine An employee reported to Bube that Eddie Har desty had damaged a candy machine by breaking the glass and bending the door Bube reported the incident to Wolfe and inquired as to discipline Wolfe told Bube to take whatever disciplinary action he saw fit Bube asked whether an oral warning or other would do Wolfe said an oral warning would do Bube wrote up the warning and presented it to Wolfe Wolfe okayed it and Bube said he wanted to talk to Chnstley about It Wolfe told Bube to do whatever he wanted to do about it Bube tried to see Chnstley that day but he was absent from the plant Several days passed without Bube at tempting to see Chnstley and Bube let the entire incident pass without administering the discipline to Hardesty Bube was discharged by the Respondent on February 9 The Respondent told Bube he was discharged for taking time off the job and giving false reasons to the Company The following week Moxley for the first time spoke to Bube and offered to get Bube a job Later the same day Bube agreed to talk to the Labor Board Bube stated that he did not mind talking to the Board if he could help out Randy Cunningham a little bit c Warning to employees that returning strikers subject to harsher and more severe standards of production and work rules Bube testified that he treated the returning strikers as fairly as he could He did not make strikers work harder than nonstrikers nor did he apply harsher discipline or production standards to strikers than he did to non strikers However at times he did have to tell some re turning strikers let s not spend as much time boanng around let s go ahead and get to work Bube did not play favorites among his employees and he did not have occasion to discharge any striking employees Bube did not issue any warnings to returned striking employees with regard to company rules on production standards or discipline l l None of the named employees was called to testify 12 Pierce was not called to testify 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD d Allegations The General Counsel alleged in Case 25-CA-10436 as follows 6(c) The Respondent by its supervisor and agent John Hoback on or about an unknown date in June 1978 at the facilities warned its employees it would not offer the Union as much as it had previously be cause of the strike referred to in paragraph 5 above No evidence was presented to support this allegation (e) The General Counsel alleged in Case 25-CA-10436 as follows 6(f) The Respondent by its following named super visor and agent on or about the date set opposite her name at the facility warned its employees that the Union would be unsuccessful in reaching a labor agreement with the Respondent and that the Union should terminate its efforts to represent the employ ees of the Respondent MiIda Boldstaudt—early November 1978 Katherine Foster testified that she went on strike May 13 After 3 weeks of striking she went back to work While the strike continued she worked Each day she ate lunch with Milda Boldstaudt her supervisor and friend 13 At times other employees ate with them During lunch each day there were conversations on many subjects Frequently the strike was a topic At one point in November while the strike was still on Foster asked Boldstaudt her personal opinion on several topics One was whether Mr Keller might or might not agree to a closed shop? Another was whether or not he would agree to a union shop9 A third was when do you think this will ever be straightened out? Boldstaudt replied that the Company would never agree to a closed shop a union shop or whatever The Union just might as well give up and go away It would never get it Analysis and Conclusion The General Counsel alleged that the truck against car incident was an attempt by the Respondent to cause bodily injury to the Union s agent Moxley to discour age the employees from continuing their protected activ ity of striking The facts relied on by the General Coun sel are basically undisputed and fail to disclose any intent to injure Moxley or damage his car The only abandon ment of the protected activities caused by the incident involves Moxley and Barnum leaving the strike area to involve themselves with the departure of a loaded trac tor trailer The entire incident takes place on the public road and consists of vehicular interference with each other—one side trying to escort the tractor trailer to the open road and the other side trying to impede the smooth departure of the load It is evident to me (from all the evidence) that the compromising position Moxley found himself in on the side of the road although poten tially hazardous was not the direct result of the Re 3 Boldstaudt was not called to testify spondent s acts or intent but grossly contributed to by Moxley himself and Barnum But for Moxley s attempt to stay in front of the tractor trailer and to govern the speed of the truck by his automobile s speed the incident would not have occurred unless Moxley attempted to keep the tractor trailer from passing him by blocking the road There were several intents present but none was violative of the Act In my view (although I do not con done any attempt to harass by vehicle) both parties were doing their thing The Respondent was moving a load and the employees were trying to make it more difficult than usual The only relation of the incident to the em ployees protected activity as I see it is that two agents of the Union who had been engaged in the strike volun tartly disengaged themselves from the strike and in volved themselves with the truck I conclude that the General Counsel has not supported his allegation by sub stantial evidence and therefore find that the Respondent has not violated the Act as alleged The subparagraphs (b) and (c) above involve the fol lowing complaint allegations and shall be analyzed to gether due to the similarity of substance Case 25-CA-10639 6 The Respondent has interfered with restrained and coerced and is interfering with restraining and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act by the following acts and conduct (a) The Respondent by its following named su pervisors and agents on or about the dates set opposite their respective names at the Corydon facility instructed its foremen to implement and maintain a harsher and more severe standard of production and adherence to the work rules of the Respondent for those employees who partici pated in that strike described above in subpara graphs 5(a) and (b) than for those employees of the Respondent who had not participated in the said strike John Wolfe—early January 1979 Dick Chnstley—early January 1979 (b) The Respondent by its following named su pervisor and agent on or about the date set op posite his name at the Corydon facility warned its employees that it maintained a harsher and more severe standard of production and adher ence to the work rules of the Respondent for those employees who participated in that strike described above in subparagraphs 5(a) and (b) than for those employees of the Respondent who had not participated in said strike Richard Bube—late December 1978 or early Jan uary 1979 7(b) Since on or about November 27 1978 and continuing to date the Respondent has discrimmat ed and is discriminating against its employees em ployed at the facility in regard to hire or tenure of KELLER MFG CO 771 employment or term or condition of employment by the following acts and conduct (i) maintaining a harsher and more severe stand ard of production for those employees who par ticipated in that strike described above in sub paragraphs 5(a) and (b) than for those employees who had not participated in the said strike (n) maintaining a harsher and more severe stand ard of adherence to the work rules of the Re spondent for those employees who participated in the strike described above in subparagraphs 5(a) and (b) than for those employees who had not participated in the said strike To begin with the Respondent argues that the allega ton Respondent instructed its foremen to implement and maintain for those employees who participated in the strike is not discernible as a violation of the stat ute While the actual implementation or maintenance of such a change would constitute interference restraint coercion and possibly discrimination by motivation if not otherwise the instruction of such a policy could be a violation if communicated to employees The General Counsel s proof consists of that very communication al though the conversation is not quite as substantial as the allegation i e Bube told the employee only that his su penors said to take it easy on the nonstrikers There was no mention of making it harder on the strikers Addition ally Bube s communication is limited to a department of approximately 10 employees apparently split rather evenly between strikers and nonstrikers Then too Bube s communication dealt only with discipline i e no mention of production standards 14 Nonetheless there was communication of a disparity of discipline according to Bube Although lacking complete substantiality due to its limited dissemination and somewhat isolated nature (Bube s department) the evidence if credible would sus tam a violation of the Act However the testimony of Dube when considered in toto leads me to discredit his conversation with the employee Besides Bube s obvious prejudice he admittedly gave testimony in response to a solicitation from a friendly employee involved in the case and a possible facilitation of finding employment by the union agent involved in the instant case This motiva tion on the part of Bube coupled with inconsistencies and contradictions in his testimony causes me to be sus pect of his credibility Bube s conversations with his su pervisor Wolfe shows no acknowledgement of any in structions to favor the nonstrikers but rather uniformity of discipline Such conversations with Wolfe followed in quiry by Bube as to what would be proper (I am assum ing both Bube and Wolfe knew who the nonstrikers were so the failure to identify employees is not fatal ) In those instances where Wolfe responded it clearly was nondiscriminatory and nondisparate In addition the ob 14 The General Counsel offered no evidence of disparity in pay re ceived by stnkers and nonstrikers whether base pay or incentive pay However the record as a whole does show the Respondent continued without change its existing pay structure both during and after the strike jective evidence in the record is contra to the alleged in structions and Bube s action vis a vis nonstriking em ployees likewise confirmed that they indeed were disci plined according to company policy In summary the General Counsel has not supported the allegation with reliable credible evidence so I therefore find that no such instruction was given by Wolfe or Chnstley nor was such instruction communicated to an employee by Bube Assuming that the warning of employees alleged by the General Counsel stems from the same conversational circumstance I conclude and find for the same reasons that the General Counsel has not sustained his burden of proof for the warning allegation The General Counsel s proof of the maintenance of different rules for strikers and nonstrikers involved rela non of several instances by witness Bube In those in stances when other employees could testify and from firsthand knowledge the General Counsel did not seek their testimony Therefore the proof rests in the testimo fly of Bube and may or may not suffer from lack of first hand knowledge The General Counsel seems to place some credence in the fact that Bube was a supervisor of the Respondent at the time of the occurences but the Respondent is not bound by his testimony or actions as a result of his prior supervisory capacity Bube is simply a witness called by the General Counsel in support of the General Counsel s case in chief The General Counsel s evidence relative to production standards is more than inconclusive It shows that the production standards by which employees are paid in centive pay are and have been 100 percent and 120 per cent Bube s testimony does not show that the Respond ent after the strike required the striking employees to make 120 percent production while allowing the non striking employees to only make 10 percent Bube s testi mony does show that all employees were expected to make the same production The record also shows that the low earners report alluded to by Bube when refer ring to Forbes and Lewis contained both strikers and nonstrikers The exhibits graphically show Bube s inaccu racies by reflecting that Lewis was not a replacement hired during the strike as implied by Bube s testimony Thus the testimony simply does not show disparity Even if Bube is credited as to Forbes and Lewis attain ment of only 65 percent production such a fact would not standing alone be substantial to prove a policy de signed by the Respondent to penalize the strikers and favor the nonstrikers Additionally Bube s testimony is not that reliable The objective evidence establishes that Lewis did not work for Bube during Lewis initial proba tionary period and therefore Bube s desires of dismissal could not have been countermanded by either Wofle or Chnstley In my view Bube embellished his testimony in an effort to help a friend and vindicate his summary dis missal by the Respondent Bube s testimony of his con versation with employee Pierce suffers further suspicion in that he did in fact discipline both Forbes and Lewis for absences and at his own violation As Bube did state Wolfe told him to take whatever measure he thought necessary Apparently Bube took what measures he 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thought necessary and was not limited by any favoring discipline policy for nonstrikers contrary to the clear im plication of his testimony in response to the General Counsel s question On cross Bube admitted that his deal ings with his employees were fair and impartial without regard to the employees strike sympathy Bube s references to both Hardesty incidents are sub ject to several inferences if considered reliable at all The alleged altercation is fatally inconclusive and cannot be assessed as evidence of disparity between strikers and nonstrikers Bube s determination as related by him is not based on a complete investigation nor is the hiatus between the incident and discipline substantially recount ed Indeed Bube simply stated he did not hear anymore after February 7 In my view if the evidence did estab lish that Hardesty a nonstriker was treated differently than a striking employee for the same offense (which it does not) it falls short of defining that difference as no discipline for Hardesty The record does not show one way or the other Additionally Bube s characterization of an assault by Hardesty is not supported by the record as a whole which evinces a provoked incident rather than an assault The Farrell incident represents oral discipline by Bube and the suggestion by Christley that Bube should have written Farrell up Christley did not demand that the dis cipline be made more severe nor did he himself do so Christley s reference to insubordination when talking with Bube about Farrell does not in my view establish an attempt to expedite the progressive discipline of Far rell toward a desired result of discharge The foundation for such an inference simply is not present Bube s ac count is too sparse to be reliable even if fully credited Bube s colloquy with Chnstley about his supervisory evaluation based in part on turnover in his department not suffering if an insubordinate employee is terminated is not outside the normal personnel or reasonable prac tees Unsafe or insubordinate employees are not an asset to any work force and their manner is usually not attnb utable to the quality of supervision they receive There fore such a termination would not normally reflect on the supervisor except to show that he is concerned for the entire group and the influence of one inferior em ployee I do not find the Farrell incident probative of any allegation in the complaint mainly due to the unrelia bility of Bube and the unsubstantial nature of the inci dent The Hardesty involvement with the candy machine is not probative of laxity of discipline to nonstrikers as al legedly dictated by the Respondent Rather it shows that Bube did in fact admonish Hardesty orally and pre pared a written discipline which was approved by his su penor Wolfe Bube for reasons known only to himself wanted to talk with the plant manager Chnstley before turning in the discipline but was unable to meet with Chnstley Bube then apparently rescinded the discipline to Hardesty because he failed to turn it in to personnel I cannot perceive any disparity present in the lack of disci pline of Hardesty Assuming arguendo the fact that he was not disciplined for some damage to a vending ma chine does not without more establish that striking em ployees guilty of the same infraction would be disci plined without regard for the Hardesty precedent In view of the above I conclude that the General Counsel has not proved his allegations of disparity be tween standards of work rules applied to striking and nonstriking employees Accordingly I find that the Re spondent has not violated the Act and will recommend dismissal of the appropriate complaint allegations The allegation that employees were warned that the Union would be offered less now because of the strike was not supported by testimony from the General Coun sel No evidence contained in the record is probative of the allegation I shall therefore recommend dismissal of this allegation The allegation of a violation charged to Supervisor Boldstaudt deals with a warning to employees that the Union s attempts to negotiate with the Respondent would be futile The General Counsel did not argue this allegation in his brief nor did he specify his proof there of Foster s testimony was the only reference to a con versation with Boldstaudt about the Union As her testi mony shows the conversation occurred during lunch in an amicable atmosphere with a friend and the supervi sor s remarks were solicited as a personal opinion The supervisor was not asked for a reply from management nor was any special relationship between Boldstaudt and Keller presumed by the employee or shown to exist to the employee In my view the conversation is nothing more than the usual speculation that abounds in a strike situation between employees and their supervisors par ticularly the employees who are working during the strike I conclude and find that the supervisor s reply is not a violation of the Act Assuming arguendo I would not find the testimony probative of the allegation as pleaded or to state it another way I would recommend dismissal due to the overpleading of the allegation Ac cordingly I shall recommend dismissal of the allegation B Alleged 8(a)(3) Violations 1 Discrimination against Conrad Doris Conrad testified that she was employed by the Respondent from September 1973 to her discharge on December 1 1977 For the last 2 years of her employ ment she was a glaze wiper or a brusher in the glaze group of the chair line The glaze group worked on a group incentive shared by the whole group The last 4 months of her employment she was supervised by Cova Bates Her previous supervisor was Clarence Wiseman During November 1976 the Teamsters were handbill mg the plant and she took a handbill as she came to work Later the Teamsters held employee meetings which Conrad attended Subsequent to the first meeting she solicited about three employees to sign cards signed a card herself and turned the cards over to the Team sters The day before and the day of the election she wore a union button which drew a comment from Plant Manager Keller to the effect please take that off She also wore a shirt that bore the legend vote yes on the back Although she was observed by management wear ing the shirt and the button she was not observed solicit KELLER MFG CO 773 ing the cards Dunng a company meeting before the election Conrad joined about 10 other employees in voicing complaints to management relative to solving employees problems without a union While under Clarence Wiseman s supervision Conrad received a reprimand for poor work following an inspec lion of chairs by a management team on April 11 1977 15 The entire line of approximately 11 employees received a reprimand under the Respondent s discipli nary policy The Respondent holds all employees in a group team or a line team responsible for all rejected products The specific complaint of management was failure to properly wipe and brush the seats and headrest areas during the glazing operation Conrad testified that her reprimand was identical to the others in the glaze group and she read each of the other reprimands Conrad recalled that the employees who received the reprimand on April 11 1977 were Mary Carver Edna Lawson Wanda DeLaney Bonnie Patterson Jolene Mauck Robert Staple Fran Lens and Conrad Conrad refused to accept hers until several days later when she requested a copy stating to her supervisor I am going to file charges against that reprimand Conrad did not know whether Homer Wiseman or Edith Adamson from the varnish group received similar reprimands At some point in time after April 11 1977 Conrad s supervisor changed from Wiseman to Bates Conrad re ceived a written warning dated October 31 1977 for loafing and wasting time on the job Conrad testified that an employee s mother had died and she was taking up flower money on the chair line She usually took such collections and had done so 8 to 10 times in the past 2 or 3 years Usually employees are solicited before work or at breaktime and then they would give their money whenever they could On this occasion the line had stopped (for unknown reasons) and she realized that Homer Wiseman the varnish man was not aware of her solicitations She left her work station and went to Wise man s station to solicit Wiseman was working spraying varnish on chairs when Conrad approached him After a discussion lasting 2 to 3 minutes Wiseman gave Conrad a 50 cent donation Conrad started back to her station and saw Bates in the area She solicited Bates who said he would contribute later Conrad went back to her sta tion just as a pallet was coming down the line Later the same day Bates did give Conrad a contribution The fol lowing day Bates called Conrad to his office and told Conrad he was writing her up for leaving her work sta tion and talking to Wiseman for 5 minutes Conrad re sponded that she was on an errand of sympathy and should not be written up Bates nonetheless gave the written warning to Conrad As he extended the warning she began leaving the office and told Bates to stick it up his tail whereupon Bates told her she was suspended for such talk Conrad asked for how long and Bates responded Whenever I decide to call you back Conrad left the plant and went home The personnel 5 This testimony although dealing with material outside Sec 10(b) was admitted pursuant to a Board Order ruling on a special appeal not withstanding the General Counsel s statement that the particular repri mand as a complaint allegation was included only for completeness not for a finding (Tr 15-16) office called Conrad and told her to report back to work on Monday November 7 1977 Thus the suspension was for 3 working days Conrad recalled during her tes timony that an employee Mary Roland had been sus pended when her foreman offered her a work apron which she claimed was too short and rejected it by tell ing him to stick it When Conrad returned on Monday November 7 1977 she received a reprimand from Bates for her previ ous insubordination The reprimand was dated Novem ber 1 1977 On November 30 the chair line began running another series of chairs The glaze group noticed dark spindles in the chair backs and dark edges on the seats and head rests The group called Bates over and showed him the dark areas and told him the glaze was biting in making it impossible to wipe off The group speculated that the dark areas were the result of bad spin sanding Conrad stated that Bates agreed the problem was caused by bad spin sanding but said to continue running the chairs and he would try naphtha to lighten the dark areas The following day the same circumstances existed but Bates again said to continue running the chairs About noon the chairs started coming back from the shipping depart ment via rejection in inspection Conrad stated that about 50 chairs came back Bates came to the group and point ed to the rejected chairs stating glaze on the spindles and walked away About 3 p m the glaze group was called to Bates office and given reprimands for poor workmanship Bates asked Conrad if she saw the 50 chairs that came back marked glaze on spindles Bates said I have to give you a reprimand for it and this is your third reprimand so therefore it discharges you Conrad said the cause was bad spin sanding She then proceeded to check each of the chairs Bates watched her but made no comment After checking the chairs she left the plant The following week Conrad got her final paycheck Conrad was offered reinstatement during the strike but she refused the Respondent s offer preferring to stay on the job she had acquired after her termination In declining the offer she avowed to pursue any back pay due her Edna Lawson testified that she had been a glaze wiper for 6 years then transferred to the sanding room for dining room furniture She stated that she was in the group of glaze employees who received the repnmand on April 11 1977 (see fn 15) The group receiving repn mands consisted of Staples Carver Conrad Mauck De Laney and Patterson Clarence Wiseman gave the repn mands to the individual employees in the afternoon Lawson first learned of the rejected chairs when she re ceived her reprimand because she had been off work sev eral days with measles returning to work on April 11 and therefore could not have participated in the faulty work Mary Carver testified that she was in the group of em ployees who received reprimands on April 11 1977 (see fn 15) Her reprimand was the same as Conrad s and for the same infraction She was issued her reprimand by Clarence Wiseman just as Conrad and the others 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Homer Wiseman testified that he has worked as the varnish man on the chair line for 20 years In 1977 he did talk to Doris Conrad at his work station while he was working about a contribution for Leoma Lawson s mother He gave 50 cents to Conrad who then talked to Bates Wiseman stated that while Conrad talked to Bates he (Bates) reached into his billfold and gave Conrad a bill but he could not see whether it was a $1 or a $5 bill His conversation with Conrad lasted 2 to 3 minutes but he did not know if during that time the remainder of the glaze group was working There are times that the line slows down but when it is going to be down for 15 mm utes or more the employees punch out Wiseman testi tied that he contributes whenever he is asked and he has been asked at all hours of the day but he does not know if Bates permission is necessary to solicit Wiseman could not recall that Conrad had solicited for anything pnor to the Lawson solicitation or since the Lawson so imitation Although Wiseman learned the next day that Conrad had been disciplined for talking to him he did not discuss the incident with anyone including his super vision Cova Bates testified that employees can solicit contn butions for death funds flowers etc but they must have his prior permission In addition if the solicitor is from an incentive group he or she must also have their per mission because the absence could affect the pay of the whole group No collection had ever been taken by an employee without permission except Conrad s She had not collected before and she did not have permission to leave her work station on October 31 1977 At that time the line was working although it may have been slow or the other employees took up the slack Although Con rad s station is only 35 to 4.0 feet from Wiseman s station the chairs upon leaving Conrad s station must go to the accenter cow taller oven shade and spatter group before getting to Wiseman s varnish spray Bates was observing the line and had a stopwatch which he used to determine percentage of productivity by timing an operation s duration He timed Conrad with the stopwatch and she was away from her work station and stopped Wiseman from working for a total of 5 min utes Bates was 20 to 25 feet from Wiseman and Conrad and could not hear their conversation Conrad left Wise man and came to Bates and asked for a contribution Bates agreed to contribute but would actually pay her later The next day Bates called Conrad to his office in the presence of Foreman Dennis Gurtz and told her he was giving her a wntten warning for loafing on the job Octo ber 31 1977 Bates read the warning to Conrad which is company policy and then handed it to Conrad Conrad said to Bates You can stick it up your tail as far as I m concerned She then turned to walk out of the office and Bates told her to stop He told her she was suspend ed for talking to a supervisor like that to punch out and go home Bates told her she would be contacted about when to return to work Conrad returned to work No vember 7 1977 Bates stated that one other employee had been sus pended and given a reprimand for insubordinate remarks to a supervisor Mary Roland had objected to a work apron offered to her by her foreman Dennis Gurtz on November 28 1977 and told him to stick it She was reprimanded and suspended for three working days On November 30 1977 a member of the glaze group possibly Wanda DeLaney called Bates to the line The group told Bates that the spindles were too dark and the glaze was biting down and could not be wiped off Bates told the group that it was just an excess of glaze and needed extra wiping One in the group said it was bad spin sanding Bates said it was not bad sanding and the seats were too dark too (The seats and headrests are not spin sanded ) Bates told the group to use naphtha to cut the glaze and dipped a rag in naphtha to show them the excess glaze would come off Naphtha has always worked before and since It is the standard chemical that cuts the glaze Bates specifically denied telling the group to run badly sanded chairs at any time The following day John Hoback was conducting his daily check of the product at the inspection station and called Bates to the shipping department Hoback pointed out the excess glaze to Bates who flicked the glaze off the seat edge with his thumbnail The glaze and the top coat were removed by the flick Inspector Wenning had made a count of 50 chairs listing excess glaze as the cause of rejection and returned the chairs to the finish department Bates returned to the glaze group and told them the chairs had an excess of glaze caused by failure to proper ly brush or wipe the excess off The excess is caused by what remains on the chair after brushing and wiping it It is not a cause of too much glaze being sprayed on Bates called the group to his office and gave each either an oral warning written warning or a reprimand de pending upon their personal history of discipline for poor workmanship The policy is to progress the discipline The discipline cannot regress although it can be lateral Conrad was given a reprimand which caused her dis charge by accumulation of two for the same infraction or a total of three in any category within 1 year Conrad protested by asking to see the chairs Bates showed her the chairs and stood by as she viewed each one As she looked at the chairs she remarked This could be mine this is not mine and not all the mistakes are hers After she finished viewing the chairs Conrad made a remark to Bates that she hoped the Lord looked over him and she would pray for him Conrad then left the plant and Bates reported her discharge to his supervisor Hoback Bates stated that the incident resulted in seven employees in the glaze group being disciplined John Hoback testified that twice a day he looks at 10 chairs in the final inspection before packing If the ma jonty is bad he then looks at about 50 chairs to get a perspective On December 1 1977 he had to look at 50 chairs They were all bad Inspector Wenning was present and agreed the chairs were unacceptable and re turned the chairs to the finish department The chairs were rejected for too much glaze and not wiped proper ly Hoback stated that the excess glaze was not the result of spin sanding because bad spin sanding would have caused the glaze to bite in The glaze was not biting in nor was the excess confined only to the spindles which KELLER MFG CO 775 are spin sanded This was the largest group of chairs that Hoback had found with excess glaze He called Bates to see the chairs and Bates confirmed the cause of excess glaze and poor wiping and brushing After viewing the chairs Bates returned to the finishing department Analysis and Conclusions It is undisputed that Conrad was discharged pursuant to a progressive discipline which began with the April 11 1977 reprimand followed by two more reprimands on November 7 and December 1 1977 A related written warning dated October 31 1977 and a 3 day suspension contained in the November 7 discipline emanate from the same circumstances but are not part of the progression the General Counsel claims is discriminatory The Gen eral Counsel does contend generally that all conduct di rected at Conrad was discriminatorily motivated The Respondent counters with Conrad s various con ducts as the cause of her discharge and evidenced in the discipline she received Conrad s union activity is claimed to have played no part in the Respondent s deci sion to discipline or discharge Conrad The cause is therefore presented as one of employer motivation The General Counsel must show that Conrad engaged in union activity the Respondent had knowledge of Conrad s union activity the Respondent harbored animus against Conrad or the Union and that the discipline meted out to Conrad which resulted in her discharge was motivated by her engaging in protected activity or animus against the Union The General Coun sel s successful presentation of a prima facie case of dis crimination shifts the burden to Respondent to present evidence that the discipline and discharge of Conrad would have occurred in the absence of any union activi ty on her part 16 Conrad s union activity is somewhat remote from her discharge and her disciplines with the exception of the April 11 1977 reprimand In addition Conrad was not singled out by the Respondent for her union activity other than Plant Manager Keller s noncoercive remark about Conrad s union button Albeit Conrad was joined by large numbers of employees in her union activity the General Counsel has shown her involvement and the Re spondent s knowledge thereof 17 I conclude and find that Conrad did engage in protected activity prior to her dis ciplines and discharge and that the Respondent had knowledge of such activity Whether her protected ac tivity motivated the Respondent to discipline and dis charge her is another matter Such an Illegal motivation must be found on the basis of inferences Inferences are usually supported by coincidence of union activity and discipline disparity of treatment as between the alleged discnminatee and other employees the Respondent s general bias and hostility toward the Union a variance in the Respondent s normal routine or an implausible expla nation by the employer for its actions The General Counsel presented little evidence from which an Inference of Illegal motive can be drawn Con 8 Wright Line 251 NLRB 1083 (1980) 7 I do not infer to the Respondent knowledge that Conrad was solicit mg signatures in the fall of 1976 rad s union activity is not proximate to the disciplines nor is there evidence present to show that the Respond ent s preelection animus (previously found by the Board) survived the election and continued to be impressed on its employees 18 There is no evidence to show disparity of treatment but rather the evidence shows that the Re spondent recognized no favorites and disciplined any and all employees based on the individual employee s or the work group s conduct This is particularly true where product quality is affected Except for Conrad s testimo ny there is no evidence of the incidents Involved in the disciplines Although several of Conrad s glaze group testified on other matters they were not questioned about the substance of the disciplines e g Carver who is still an employee did not testify to glaze group disci plines or to Conrad s involvement in solicitations al though she was employed dunng Conrad s employment Carver only testified to the April 11 1977 reprimand Lawson did not testify to glaze group disciplines or to Conrad s involvement in solicitations although she was employed a portion of the time Conrad was employed Lawson did testify to the April 11 1977 reprimand Homer Wiseman was called to testify to a single incident which precipitated the October 31 1977 written warning for loafing but was not asked to recall the basis for the other disciplines Inspector Betty Wenning was called to testify to other matters but was not asked about the product rejections that resulted in discipline for the glaze group Conrad s testimony of having engaged in prior solicita lions and the implied provocation of death money when subjected to discipline for soliciting I do not credit Her own testimony evinced the rule to be as Bates testified not without prior permission and the in centive pay group s permission if during working hours Conrad did not deny that she did not have permission or that she should have Conrad s demeanor was not im pressive to me nor was her recall persuasive I found her candor at admitting that she told her supervisor to stick the written warning up his tail instructive of her re solve not her veracity for the truth Determined or not her remark was clearly insubordinate and deserved the discipline she received particularly with the decisiveness and immediacy displayed by Bates Conrad s own testi mony showed that she both expected and did not ques tion the suspension She only asked how long The Gen eral Counsel s attack on the suspension is only general without any particularity and also acknowledges Con rad s conduct on October 31 and November 1 1977 The November 30 and December 1 1977 episodes which resulted in product rejection and discipline for the entire glaze group are disputed Conrad states that Bates admitted a prior operation of sanding was faulty but told the glaze group to perform their own operation knowing the chairs would be defective According to Conrad Bates would use naphtha to try to lighten the color by removing the excess glaze Bates denied having told the group to continue running known defective chairs Bates says he told the group it was not bad sanding but an 8 Supra fn 3 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD excess of glaze left on the spindles and seats which could be removed by applying naphtha and proceeded to show the group how it was done Conrad s version is premised on bad sanding the poorest of supervision and unsup ported by logic or reason In addition several employees with knowledge of the incident did not testify The most noteworthy of which was the inspector who rejected the chairs and returned them to the finish department Bates version is supported by both accepted practices and Ho back s recall of the incident including the involvement of inspector Wenning Conrad s demeanor was no more im pressive to me than the unrealistic substance of her testi mony According to Conrad she did not protest the dis cipline based on Bates orders to run the bad chairs but rather inspected each chair to attempt to determine which she was actually responsible for I view Conrad s lack of protest as instructive of the nature of the entire incident The glaze group was shown how to correct the defect with an unordinary procedure but failed to follow instructions which resulted in rejected products Both the cause and effect were disciplined by Bates and appar ently accepted by the entire group Conrad s testimony to the contrary I do not credit In addition I draw an adverse inference from the General Counsel s failure to elicit testimony from witnesses with firsthand knowledge of the facts who did in fact testify as well as those he failed to call to the stand I therefore conclude that the General Counsel has failed to present a prima facie case of discrimination di rected at Conrad through the several disciplines and her discharge This however does not end the determina non for the General Counsel has argued that the prior Board case (supra fn 3) is controlling indeed is disposi tive of the alleged discrimination against Conrad The General Counsel points out that Judge Rose found the April 11 1977 reprimand to be discnminaton ly issued to four named employees not including Conrad but fails to explain the variance between his ar gument and the more specific allegation in his complaint An additional finding that the discharges of the four named employees were violative of the Act rested on the April 11 1977 reprimand being the first in a series of progressive disciplines culminating in the discharges Subsequently the Board additionally found that the Re spondent used its disciplinary procedure to retaliate against union supporters relying in part on the pretextual use of the discipline in several discharge cases The Gen eral Counsel argues that the April 11 1977 reprimand re ceived by Conrad was the same reprimand under consid eration by Judge Rose and presented Carver and Lawson two discrimmatees in Judge Rose s case to identify it The General Counsel states that there is no issue as to the discriminatory nature of the April 11 1977 reprimands and no question that Conrad s reprimand is the same as that found by Judge Rose to be discriminato ry Therefore Conrad s discharge based in part on the April 11 1977 reprimand is a violation the same as the four discriminatees found by Judge Rose To dispel the 10(b) attack the General Counsel explains that the dis crimmatory nature of Conrad s April 11 1977 reprimand is not rendered nondiscriminatory by the passage of time and discharges based thereon are thus discriminatory so long as they occur within 10(b) limits He does hasten to add however that he does not seek to rehtigate the ille gality of the April 11 1977 reprimand because the Board has already found it to be discriminatory With regard to the Board s additional finding the General Counsel argues that since the Board found that the Respondent used its disciplinary system discnmina tonly all discharges flowing from an accumulation of disciplines issued under the system would also be dis cnminatory In addition the General Counsel contends that Conrad s subsequent disciplines of October 31 No vember 1 and 7 and December 1 1977 are a fortiori violative of the Act because of the Board s prior finding The Respondent attacks the admission of the evidence and defends its April 11 1977 reprimand to Conrad under Section 10(b) of the statute In my view the Respondent must prevail The Gener al Counsel s syllogistic reasoning has no basis in law or in logic Board orders and remedies although prospec live in some respects must first be based on specific unfair labor practices having been committed and be de signed to remedy those specific unfair labor practices found The Board cannot remedy conduct not specifical ly found to be an unfair labor practice and it need not be stated that the Board can only remedy conduct which is violative of the statute An obverse parallel is that even in contempt proceedings a de novo finding that certain complained of conduct constitutes an unfair labor practice must be made before the prior Board order be comes operative of the latest vice A correlation is found in the application of the judicial precedent law of the case when one considers whether an issue is justiciable The Board s disposition of any controversy is the law of the case particularly with regard to the same parties or their privies Albeit the current issue is a lesser of the greater it is nonethe less foreclosed to further litigation Thus it seems clear that to determine whether questionable conduct has been considered and found violative by the Board one need only view the Board s order Particularly in the case of discrimination the order is controlling There is defined the discrimination and how it is to be remedied The af firmative portion of the order specifies each act of dis crimination and what Respondent must do to remedy the discrimination found The prior Board case discloses the following applicable portions of the order 19 (f) Disciplining or otherwise reprimanding em ployees in a manner more severe than is consistent with established disciplinary policy because of their interest in or activity on behalf of the above named labor organization or any other labor organization or to discourage such union activity (b) Rescind and remove from its files any refer ences to the oral warnings written warnings and reprimands issued for discriminatory reasons to the following employees and provide that these warn ings shall not be used as a basis for further discipli 9 237 NLRB 712 at 728 KELLER MFG CO 777 nary action against said employees James Michael Bright Daniel Milchling Joe Foster James East Roy S Dearborn Gary Mattingly Mary Carver Edna Lawson Homer Wiseman Edith Adamson Cassie Mae Barnum Nicky Edwards Nancy Ruth Pittman Barbara Jean Miller and Sharon Snyder Conrad is not mentioned by name in the Board order Therefore Conrad s discipline was not found to be an unfair labor practice Having not been found violative there of course was no remedy As far as the Board case is concerned the discipline of Conrad was not under consideration Indeed the General Counsel for reasons known only to him chose not to allege or lin gate Conrad s discipline even in the face of her individ ual protestations at the time With regard to the issue of the April 11 1977 repn mand and admissibility of evidence what the General Counsel alludes to as background is unavailable to him in my view for several reasons First the event clearly is outside 10(b) limitations Second the event if under consideration could only be helpful to the General Counsel s case by a determination that such event consti tutes an unfair labor practice and thereby supports the General Counsel s argument of progressive discnmina tion which began outside the 6 month limitation period Such a determination falls squarely within the proscnp tion found in the standards for use of background evi dence set down by the Supreme Court in Machinist Local 1424 (Bryan Mfg Co) v NLRB 362 US 411 (1960) The Court stated as follows It is doubtless true that Section 10(b) does not prevent all use of evidence relating to events tran spinng more than six months before the filing and service of an unfair labor practice charge However in applying rules of evidence as to the admissibility of past events due regard for the purposes of Sec tion 10(b) requires that two different kinds of situa tons be distinguished The first is one where occur rences within the six month limitations period in and of themselves may constitute as a substantive matter unfair labor practices There earlier events may be utilized to shed light on the true character of mat ters occurring within the limitations period and for that purpose Section 10(b) ordinarily does not bar such evidentiary use of anterior events The second situation is that where conduct occurring within the limitations period can be charged to be an unfair labor practice only through reliance on an earlier unfair labor practice There the use of the earlier unfair labor practice is not merely evidentiary since it does not simply lay bare a putative current unfair labor practice Rather it serves to cloak with file gality that which was otherwise lawful And where a complaint based upon that earlier event is time barred to permit the event Itself to be so used in effect results in reviving a legally defunct unfair labor practice [Emphasis added ] In summary there simply is not a prior finding on Conrad The General Counsel s evidence must therefore be within the 10(b) limits and must be substantial I conclude that the reprimand issued to Doris M Conrad on April 11 1977 is not within the Board s prior determination of discrimination as argued by the General Counsel and further that any consideration of the sub stance of the said reprimand in this case is precluded by Section 10(b) of the statute In addition I conclude that the subsequent disciplines to Conrad on October 31 No vember 1 and 7 and December 1 1977 are not mcluda ble in the Board s finding of discriminatory use of the discipline system and must therefore stand on their own substance In my view to conclude otherwise would make a Board order operative ad infinitum in futuro and compliance would include all subsequent actions by form related to the prior unfair labor practice The General Counsel has failed to sustain his burden of proof of discrimination against Conrad There is no evidence in the record substantial or otherwise to sup port the General Counsel s case The allegations there fore must fall and I shall recommend their dismissal Accordingly I conclude and find that Respondent has not violated the Act by disciplining Doris M Conrad in eluding her discharge on December 1 1977 2 Discharges a Gilliland Mullins and nine unknown employees Hannah Gilliland was called by the General Counsel to testify to events relating to other allegations in the several complaints She did not testify to her having been discharged or any other employee s discharge during June Gilliland did testify that she returned to the plant with the other striking employees after the strike and was reemployed as were all other strikers seeking to return to work Connie Mullins testified that she engaged in the strike and walked picket with the other employees While stnk ing during the latter part of June she was called on the phone by a person identifying himself as a supervisor named Thevanott The person told Mullins not to report to work because she had been replaced Mullins stated that she had not asked to return to work nor had she in tended to return during the strike Mullins also stated that she had not been fired or discharged during the strike She returned to work when the strike was over with the group of employees on November 27 and was put to work the following night Analysis and Conclusion The General Counsel s complaint allegations are The Respondent on or about June 30 1978 dis charged and thereafter failed and refused to rein state its employees Hannah Gilliland Connie Mul lins and nine other employees the names of which are unknown to the undersigned but well known to the Respondent The Respondent did discharge and failed and re fused and continues to fail and refuse to reinstate the employees referred to and named above in para graph 7(a) and did engage and is engaging in the discriminatory conduct described above in para 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD graph 7(b) because said employees joined and as sisted the Union and engaged in other union activity and concerted activities for the purpose of collec tive bargaining and mutual aid and protection and because they engaged in the strike against the Re spondent described above in paragraph 5(a) Mullins testimony of her conversation with a person identified to her as Thevanott is the only evidence relat ed to this allegation 20 Assuming the identity of Thevan Ott is acceptable (which it is not) the conversation does not make out a constructive discharge no more than it makes out a direct discharge The implication of the words are not totally clear particularly in view of Mul lins denial that she sought to abandon the strike and return to work or had expressed any desire to do so As is so often the case a short conversation is offered as the basis for an unfair labor practice without the context or the background of the conversation being exposed Where questions or threats are concerned few words may well be sufficient to establish the violation But where a discriminatory discharge is alleged I find such a terse conversation lacking substance to support the alle gation Moreover the facts that are otherwise present show the alleged discrimmatees (at least those named) were reinstated upon their demand to return to work contrary to the complaint allegation I do not discredit Mullins I simply conclude that her testimony is not pro bative of the General Counsel s allegation nor is it bind ing on the Respondent as principal of the alleged agent Thevanott if the substance did support a discharge alle gation otherwise I conclude and find it has not been shown that the Respondent is responsible for any con duct which resulted in an employee s discharge and I shall recommend dismissal of the complaint allegation b Sharon Snyder—alleged discharge on December 19 1978 Snyder testified that prior to the strike she was as signed subassembly light on days at the New Salisbury plant At the time of her initial assignment 2 to 3 weeks were needed to learn the job to a point where she could achieve production standard The job has a base rate equal to 100 percent of standard and group incentive rates for all production over standard for the 8 to 10 em ployees in her group Snyder s base rate just prior to the strike was $3 33 per hour and with incentive she aver aged $4 57 per hour 21 The pieces that Snyder and her group worked on were composed of three basic series with several subseries Each distinct series had its own incentive rate Of the three basic series the 1100 series comprised approximately 60 percent of the total time worked Although not daily Snyder would be trans ferred to other work stations in her group as well as out side her group to fill in for absences or to help another operation catch up when behind 20 This allegation was not briefed or argued by the General Counsel " Snyder stated that she usually made 125 percent production and that she had received three poor workmanship warnings prior to the strike During this same time she was also discipltned twice for wasting time away from her work station The subassembly light work that Snyder performed consisted of matching up door panels according to wood grain and color attaching hardware to the panels and in stalling the panels within the door frames The other op erations that she performed when her work load was slow or the others were rushed consisted of hand sand mg table tops installing shelf supports building top frames assembling door frames and installing drawer guides on the cases These extra duties had Snyder s original base rate but the incentives differed from each other and her original incentive rate In her door panel mg function as well as her extra functions Snyder used air drills air hammers air screwdrivers hammer screw driver pin nail gun and glue applicators Snyder engaged in the strike the entire time and re turned to work with the group of strikers Although she did not get an immediate assignment on November 27 she was called to come to work on December 1 22 Get telfinger personnel manager at the New Salisbury plant offered Snyder a job in her old department on the night shift Snyder declined stating she had to help out in her parent s two businesses at night she had union business relating to the strike to finish up and had a meeting scheduled with a Board agent on December 18 Gettel finger replied that if her excuses were verified by Moxley it would be okay Her parent s businesses were two establishments—one in Corydon and the other in New Salisbury The union business was to distribute strike benefit checks to those employees who had picket ed On December 7 Snyder accompanied by Rita Shields saw Gettelfinger at the plant Snyder told Gettelfinger she was there to see about her job on her shift at New Salisbury Gettelfinger told Snyder that her prestrike po sition was not open at this time but he did have an open ing on the night shift in her prestrike job The base rate and incentive rate were the same as her prestrike job Snyder asked when she could get back on days if she took the night job now Gettelfinger said he did not know when it would be but it would be as soon as possi ble Snyder accepted the offer and went to work the same day On December 12 Snyder had occasion to see Gettel finger about her unemployment insurance papers and while she was m his office Gettelfinger told her there was a day shift job in her prestrike classification open at the Corydon plant Snyder did not respond exactly but she did later recall asking Gettelfinger about when they was wanting me to go down there Later in the day Gettelfinger told Snyder to report to the day job at Cor ydon on Monday (December 18) Snyder stated she re plied Monday? and Gettelfinger said Yes Nothing more was said On December 14 Snyder went to Gettelfinger and told him that she only had interest in her prestrike day job at New Salisbury Gettelfinger asked her to sign a state ment to that effect and she did Snyder stated that while she worked nights she could see that her prestrike job 22 The only reinstatement issue considered at this point is that alleged subsequent to the alleged discharge KELLER MFG CO 779 was being performed by Lou Ann Hensley a replace ment employee hired dunng the stnke Snyder testified that on December 19 Foreman Frank Brown asked What would make you the happiest? Snyder replied To get my job my shift at New Sails bury Brown said That s what it is report back to morrow morning The following morning Snyder re ported to Gettelfinger and he told her to see Steve Book foreman of subassembly She did and Book put her on a job gluing blocks on the cases Snyder stated that Lou Ann Hensley was doing her prestrike job of door panels Snyder worked approximately 2 hours during which time she checked her incentive rate standard and found she was not making incentive at that point She went to Book and asked why she was gluing blocks Book told her it was the only opening in the subassembly group Snyder admittedly was upset because someone else was doing the door panel job and she asked Robert Harrison to accompany her to see Gettelfinger While both were on break they went to Gettelfinger s office Snyder testi fled to the following I told Gettelfinger that I was under the impression by being told that I was to report to my job that I would have my old job back which in fact I did not I told him at that time that I was not quitting but I would be leaving the plant and going home When my job became available he could call me Gettelfinger said that he did not want me to quit but he did have my phone number and would be getting in touch with me Nothing more was said Snyder finished her break gath ered her belongings and left the plant On Friday December 22 Snyder received a phone call from Stepro He informed her that the 1100 series of furniture was being moved back to the Corydon plant 23 He also told Snyder that if she wanted her prestrike job she could have it at the Corydon plant Snyder asked Stepro which series was being transferred and Stepro re plied that the 1100 series was going Snyder asked about the other series and Stepro said they would be trans ferred but for now they would continue at New Salis bury Snyder testified that when she told Stepro that she needed time to think he said that he would get back in touch with her Stepro again called Snyder on Tuesday December 26 He asked if she was planning on returning to work Snyder told him that she was not interested in going to the Corydon plant wanted to stay at the New Salisbury plant but she would not be able to return before Thurs day or Friday at the latest She told Stepro she was having trouble with arthritis in her arms 24 Snyder asked if she could call New Salisbury and talk about what jobs were available Stepro told Snyder that her indecision was holding up other job assignments and since Gettel finger had left the Company Stepro would have to be talking to someone else at New Salisbury Snyder ac 23 The 1100 series was originally in Corydon having moved to New Salisbury about 1 1/2 years previously 24 Snyder admittedly did not consult a doctor for the arthritis knowledged and Stepro told her he would be talking to her again On Friday December 29 Snyder received a letter from the Company requesting an immediate contact with the Company with regard to her work Snyder had not before or after the letter initiated any contact with the Company All contacts between her and the Company originated in the Company Snyder was unsure but stated she may have had another conversation with Stepro on Wednesday December 27 Snyder testified that she did not respond to the letter but rather attempted to get in touch with Moxley unsuccessfully Snyder testified that the letter she received from Stepro on December 29 she considered as a notice of discharge Rita Shields testified that the first week in December at 7 a m she accompanied Sharon Snyder to Gettel finger s office at the New Salisbury plant Snyder told Getteffinger that they both were reporting to work for their jobs if they were available Gettelfinger told Snyder there was an opening and gave her a time and place to report for work Later that same day Gettel finger called Shields and gave her the time and place for her job starting the following day 25 Robert Harrison testified that he had worked in subas sembly on the same cases as Snyder since September 1975 On occasion he would fill in for Snyder on door paneling Harrison joined the stnke for its entirety and when the employees returned to work he was given his prestrike position At that time Lou Ann Hensley was working on Snyder s prestrike position Harrison stated that Snyder was called back to work in subassembly but not to her prestrike position Sometime after Snyder re turned she asked Harrison to go with her to see Gettel finger Harrison testified Sharon told him that she didn t want to quit that she was not quitting but she would not come back to work until she was put on her job paneling doors Getteffinger replied Okay I have you phone number Snyder told Gettelfinger that she was going home and he could call her They both then returned to their break area and finished the break Snyder then left the plant Harrison s work station is 5 to 6 feet from the door paneling station and most of the time when he did door paneling as an extra job after the strike he fixed half turns and pilasters to the 1100 series doors whereas before the strike he had also matched panels and fixed door frames The 1100 series moved to Corydon in De cember 1978 or January 1979 however after the move was accomplished some 1100 parts that were being re worked still dribbled down the line for some time The work on those pieces was termed cleanup of the 1100 series Robert Stepro vice president of personnel testified that he telephoned Snyder on December 22 and stated that because Gettelfinger was leaving Respondent s employ he was personally following up on her work sit uation He informed Snyder that the 1100 series was being moved to Corydon and would take 2 to 3 weeks 25 Shields had not contacted the Company to go back to work but had received a notice from the Company to report within 5 days 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Stepro gave Snyder the option of going to Corydon and having her door paneling job on the 1100 series or stay ing in New Salisbury and doing other work in the subas sembly group Snyder asked for time to think about it and Stepro told her to do so over the holiday weekend and to feel free to call him at any time at his home Snyder did not call so on Tuesday December 26 Stepro placed another call to her He asked her if she had made up her mind and she asked for additional time stating that she was sick and had to see the doctor Snyder asked Stepro to wait until noon at which time she would call and give him an answer Snyder did not mention a probability of not working until Thursday or Friday Stepro agreed to wait until noon for her re sponse Snyder did not call Stepro again called Snyder on Wednesday December 27 to learn if she had made a decision since she had not called by noon the day before Snyder told Stepro she declined to work in Corydon and would accept a subas sembly position at New Salisbury on days however she could not come in that day because her arthritis was bothering her but she would try to make it in the fol lowing day Snyder did not report for work the follow ing day or the day after nor did she contact the Compa ny of her condition or probable reporting date Stepro did not call Snyder again Friday he sent Snyder a letter reviewing the exchange of the previous several days and requested that she contact the Company or suffer the consequences of a voluntary quit Union Representative Moxley was sent a copy of the same letter The Compa ny did not thereafter receive any response from Snyder or Union Representative Moxley Analysis and Conclusions The General Counsel by way of amendment to Case 25-CA-10436 added Sharon Snyder s termination to the complaint The allegations are as follows 7(c) The Respondent discharged and thereafter failed and refused to reinstate its employee named below on or about the date set opposite her name Sharon Snyder—December 29 1978 7(d) The Respondent did fail and refuse and contin ues to fail and refuse to reinstate the employees re ferred to above in subparagraphs 7(a) 7(b) and 7(c) for the reason that said employees had joined or as sisted the Union or engaged in other concerted ac twines for the purpose of collective bargaining or mutual aid or protection and/or had participated in the strike described above in paragraph 5 The General Counsel argues that few factual issues exist to prove Snyder was discharged in violation of the Act He cites her receipt of an unwarranted warning and includes as fact in this record that the said warning was never removed from Snyder s personnel file 26 No such 8 Apparently the General Counsel is referring to the discipline Snyder received in December 1976 which was included in the prior case supra at fn 3 and which is not identified as being among the exhibits received herein evidence is before me either via complaint or admission in this record If the General Counsel is construing such prior discrimination as evidence that Snyder was dis charged in December 1978 I conclude that such remote ness alone removes the prior incident from consider ation In addition there is no evidence to suggest that the Respondent kept said discrimination viable particu larly with regard to Snyder Of the evidence presented there is no dispute that Snyder s prestrike job was door paneling in the subas sembly group and neither is there any dispute that Snyder was not returned to the door paneling Job be cause Hensley was performing that job at the conclusion of the strike The General Counsel argues that Hensley was placed on that job after the strike but the evidence in the record as well as arguments during the trial evinces no real dispute over Hensley s striker replace ment status at the end of the strike The General Counsel also argues that the transfer of the 1100 series back to Corydon is a sham but fails to explain such a theory or relate it to evidence in the record As I view the record the Respondent s transfer of the 1100 series back to Corydon was an unassailable judgment of management and in fact substantiated by the General Counsel s own witnesses The General Counsel s argument that the transfer was not effectuated prior to Snyder s separation simply will not stand up The evi dence is uncontroverted that the transfer was made in December Snyder was informed of the transfer by Stepro Hensley s work on the 1100 series door paneling was reduced to practically nothing with only the cleanup of old pieces previously sent back for rework remaining on the line at New Salisbury On consideration of all the evidence I conclude that the Respondent did in fact transfer the 1100 series to Corydon nondiscnminatonly and that the vast bulk of Snyder s prestrike job of door paneling was thus a Corydon plant function rather than a New Salisbury function In so concluding I note particu larly that although the witnesses (Snyder included) agree that the 1100 series involved more work than any other single series the estimates were somewhat off Snyder herself vacillated between estimating the work to be one third or more to one quarter or less The uncontroverted objective evidence discloses that the 1100 series in rela tion to the subassembly group was 75 percent of the pay received by subassemblers and constituted 60 percent of the work load of the subassembly line 27 Assuming ar guendo my disposition of the strike allegations later in this decision moot any reference to whether Snyder s prestrike job was changed in any way either before or after her separation The case of Snyder as presented involves employer motivation in her separation Therefore the Board s cau sality test of Wright Line28 would apply The General Counsel must show that Snyder engaged in protected ac tivity proximate to the Respondent s adverse action that the Respondent had knowledge of such protected achy' 27 Albeit the representative period for the exhibit was prestrike all witnesses stated that the work was the same after the strike as it was before 8 Wright Line 251 NLRB 1083 (1980) KELLER MFG CO 781 ty that the Respondent displayed animus against unions or Snyder and that the Respondent s discharge of Snyder was triggered by her protected activity The Issue of Snyder s separation is to be decided on the evidence in the record Either she was discharged discriminatonly or she was discharged for cause unrelat ed to her union activity or she was not discharged at all 29 There is no argument nor is there any evidence to support a constructive discharge of Snyder The record does not show any discriminatory motive nor conduct on the Respondent s part in returning the strikers to work /Neither does the evidence show that Snyder or anyone else was placed in more onerous job assignments de signed to induce separation and thereby accomplish indi rectly what could not be done directly Accordingly if argued I would find that Snyder was not constructively discharged when she separated on either December 20 or 29 The record does not contain any evidence of discnmi nation directed at Snyder except for that one instance remote in time alluded to in the General Counsel s brief There is no 8(a)(1) conduct alleged or proven that is re lated to Snyder The record also does not contain evi dence of the Respondent s animus either toward Snyder other employees or the Union in general The corn plaints do contain a host of allegations and Snyder was indeed engaged in union activity admittedly known to the Respondent but allegations and suspicions are not evidence Nor can inferences be based thereon to support the General Counsel s case of discrimination In addition the General Counsel s evidence that Snyder was discharged on December 29 rests in the letter of the same date that the Respondent sent to Snyder The General Counsel fails to point out what lan guage constitutes the discharge but rather (apparently) relies on the nature of the alleged unfair labor practice strike to induce the discharge through the Respondent s failure to place Snyder on her exact prestrike job at the conclusion of the strike 39 Assuming the strike is not an unfair labor practice strike the record otherwise would not support the General Counsel s argument that Snyder was discharged at all The surrounding facts involve Gettelfinger s placement of Snyder on a job after the strike and several subsequent phone calls between Snyder and Stepro Albeit I found Snyder to be basically truthful while testifying she did exhibit some vagueness of recall and an attempt to slant her testimony in one im portant particular The import of her testimony was that Stepro was always supposed to check with her regarding her work status Thus she testified that each time Stepro ended the conversation with the words to the effect I will call you back Stepro denied that he ever told Snyder that she was to do nothing except wait for his " The General Counsel s argument that lost wages and failure to rein state strikers to their prestrike positions can be resolved in a backpay pro ceeding and because that is so the necessity to resolve the facts sur rounding Snyder s separation can also be continued overlooks the com plaint allegations the thrust of his argument and the next following por tion of his thought namely the Respondent s alleged discriminatory dis charge of Snyder This situation with Snyder s separation is outside the General Coun sel s allegation that Respondent failed to reinstate the returning strikers to their former or substantially equivalent positions of employment call If Stepro had acted as Snyder claims his action would have been totally inconsistent with the Respond ent s mode of dealing with other returning striking em ployees The admitted fact that Snyder walked off the job after only 2 hours of work shows contempt for what the Respondent was attempting to do get the returning strikers back to work on available jobs Such a display more plausibly supports continuing contempt rather than victimizing at the hands of the Respondent I credit Ste pro s denial and discredit Snyder s testimony that implied she was only doing what Stepro told her to do I con dude that Snyder was to return calls to Stepro not the other way around and had an obligation to return to work or offer some explanation for her refusal to do so The General Counsel characterizes the letter as a plea to Snyder I conclude that the letter was importing infor mation to Snyder that she must do better than her past silence or suffer the consequences of being considered a quit Snyder s admitted conduct was to work for 2 hours on the assigned job and then tell management she was leaving and not coming back until a particular job was offered to her Her obvious dislike for the job assigned was her failure to make incentive I note however that she had done similar if not identical tasks in the subas sembly group both before and after the strike In 2 hou-s one can hardly expect to accurately project what the week s production will be especially an experienced em ployee who recalled 2 to 3 weeks to make incentive when beginning employment I perceive the difficulty not to be the task or the pay (the pay group was her original pay group) but the frustration felt seeing some one else doing her old job in her place She apparently mustered the only defense she had at the time quitting the assigned task and walking off the job with a demand for her prestrike job Snyder testified that all manage ment knew she did not want to work in Corydon to jus tify her refusal to accept the prestrike position at the Corydon plant It appears that such a connection may be unfounded for the two plants are only 6 to 7 miles apart and Snyder frequently works in both New Salisbury and Corydon helping out in family enterprises Also with the transfer of the 1100 series to Corydon it seems likely that some if not all of her fellow employees may move as well Even so whatever her dislike for Corydon may be founded on it could not apply to her refusal to work in the New Salisbury plant In my view her refusal can only be supported by a lack of explanation Snyder had no reason not to work or report to the Company her rea sons for not doing so Her own testimony of her physical infirmity is not sufficient to explain particularly when such infirmity did not require medical attention For some reason known only to Snyder she did not want to work for the Respondent Under such circumstances she cannot be heard to complain 31 Accordingly I conclude that the General Counsel has failed to make out a prima facie case of discriminatory discharge I further conclude that the record evidence shows not a discharge of Snyder at all but rather a refusal on her part to work at 3 A cursory reading of the Respondent s December 29 letter to Snyder with a copy to the Union leaves little doubt of the urgency of contacting the Company about working 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an assigned task coupled with her walkout on December 20 which resulted in her being dropped from Respond ent s payroll as a voluntary quit Accordingly I find that the Respondent has not vio lated the Act through its conduct with Snyder respecting her return to work after the strike and her ultimate sepa ration Therefore I shall recommend that the complaint allegation be dismissed c Billy G Patton—alleged discharge on March 23 1979 Patton testified that his prestrike job was 3 belt sander operator on nights at New Salisbury He participated in the strike with his wife who also was employed by the Respondent Patton and his wife had previously signed union cards and attended several union meetings In late November Patton received the 5 day return to work letter sent by the Company to those strikers who had not returned to the plant on November 27 Patton returned to the New Salisbury plant and spoke with Gettelfinger Patton told Gettelfinger that his wife was pregnant and fearful of being alone at night and he thus preferred a day shift job Gettelfinger could not promise him any thing but agreed to check on it and contact Patton later Two or three days later Gettelfinger called Patton and offered him a night shift rip saw offbearer position paying less than his prestrike position Patton inquired if he had only a night job available why not give him his old position Gettelfinger told him his 3 belt sander posi tion was filled The employees working on Patton s pre strike job were a husband and wife team who had quit the strike in October and gone back to work Within 2 weeks the rip saw operator job became available and Patton bid for it and got it He also bid on every day shift job that was posted but each time was rejected be cause he had less seniority In February he successfully bid on a subassembly heavy job on days and was accept ed by the foreman in subassembly Several days later Ken Abell told Patton that he had the job although Abell did not approve of employees bidding down to jobs paying 40 cents an hour less Patton told Abell it was just what he wanted After about 3 weeks work slowed and Patton was being transferred 2 or 3 days a week to fill in on other departments On March 21 Abell called for Patton Patton testified that Abell said Well Bill your old job on the wide belt came open and I would like for you to start the wide belt tomorrow night Patton replied Hey there is no way I don t want the job Abell said Well that is a crucial ma chine We have got to have that production out Mr and Mrs Midgett have bid off of that job and I want you to run it Patton responded Well I am sorry you will just have to get someone else Abell stated Well I will tell you we are down to 200 people now People are quitting every week construction is opened up and we are losing a lot of people You are the only one that we have got here out of 200 people that can run the ma chine and get the production out that we need Patton offered to train an employee on nights so he could return to days or work the machine on days and train someone for the night shift Patton also offered to switch shifts with the 3 belt operator on days so Patton could work the machine on days Abell said no to each suggestion Patton asked if all the returning strikers had to take their old job back when it did come open and Abell responded No we have to offer it to them but in your case you have to take your job back Patton suggested that several employees on the day shift whose work is slowed may jump at the chance to get such a higher paying job Abell said Well we can t take these guys jobs and put them on the wide belt when it s your job We have to offer it to you Patton stated that it was offered and he refused He had bid off the night shift to get on the day shift Abell suggested that Patton and his wife discuss it over several days Patton reported the following day and Abell was in the office with Joe Curtis superintendent Patton relayed to them that his wife was opposed to any night work Abell said Well Bill you have to go home and think about it and if you are not here tonight at 4 p m we are going to say you quit Abell admitted to Patton that the 3 belt sander job had been posted but was pulled off the board after 2 hours Patton left the office As he passed his foreman he was asked where he was going Patton told his foreman Frank Brown that he had to go Patton said Abell told him if he is not here at 4 p m for the night shift he has lost his job Patton told his fore man that Abell wants him to run the 3 belt sander on nights or else Brown asked Patton to wait until he could find out what s going on Brown returned and told Patton it would be to his advantage to run the 3 belt sander Brown also reported that he intended to talk with Stepro Patton left and later made an appointment to see Stepro that afternoon about 3 40 p m Stepro told Patton that he would have to return to work on the 3 belt sander because they could not bend any rules for anybody 32 Ken Abell personnel manager at New Salisbury testi fled that he was employed by the Respondent on Janu ary 15 1979 following Gettelfinger s separation Patton was rip saw operator on nights when Abell began his employment A subassembly heavy day job was posted February 8 1979 and remained posted until February 12 1979 Patton bid on the job and was senior to all other bidders On February 12 1979 at 3 p m Patton came by his office and asked if he was successful on the bid Abell asked him if he had talked to the subassembly foreman which was required by the bidding process Patton responded he had not and left the office Later Abell called Patton to the office and informed him that the foreman was agreeable to the bid therefore Patton was acceptable for the job Abell expressed to Patton his dislike of employees bidding down from a $3 70 per hour job to a $3 29 per hour job He told Patton it was not against the rules but he (Abell) did not encourage down bidding Abell told Patton that he would be making con siderably less in earnings and sometimes employees did not realize the difference Patton told Abell that the money did not matter he wanted the day job Patton 32 Patton testified to further colloquy between him and Abell but It was not directly related to the assignment issue KELLER MFG CO 783 began the subassembly job the next day despite the fact that he had not worked on days before The plant occasioned slow sales in February and March and Patton had to be transferred to various other tasks several times a week to stay busy—sometimes the sand room other times the cutting lines Foreman Brown told Abell it was a problem keeping his subassembly people busy On March 19 1979 the Midgetts bid off the 3 belt sander job and moved to the Corydon plant 33 Abell had the 3 belt jobs posted on March 20 1979 At 11 30 a m Crosier called from Corydon and informed Abell that the 3 belt sander jobs on nights belonged to Patton and Riggs Abell took down the postings and Crosier as signed Riggs to her prestrike job on nights at New Salm bury Riggs had been working in the Corydon plant The following day Abell told Patton to see him after shift Abell told Patton that he was transferred back to night shift on the 3 belt sander Patton said he could not work nights because his wife was pregnant and fearful of stay ing alone at night Abell stated that under the agreement with the Union the Company was obligated to move all strikers to their old Jobs when they became vacant Patton questioned using someone besides himself and Abell told him that other employees presently working nights had prestrike day jobs to go to in the future and Patton could forestall their movement back to days Also the subassembly work was slack whereas the 3 belt sander had plenty of work and he was the most qualified Abell told Patton that once he was back on the 3 belt sander he could bid off the night shift to days Patton said he was not able to work the night shift so he would have to quit Abell testified that Patton asked to be fired so he could draw unemployment insurance but Abell de dined to fire him Abell did tell Patton that he could stay on subassembly work until Monday March 26 1979 then he would be required to take the 3 belt job on night shift Early the next day Patton discussed the same problem with Abell but with no different result Patton left the plant Abell testified that Foreman Heatwale asked why Billy was leaving the plant I told Heatwale (new foreman of subassembly) that Billy was being transferred back to the evening shift on his old job prior to the strike and that I had told him that he could start that Thursday evening March 22 or in his case I had told him that it would be all right if he wanted to wait until March 26 which was the following Monday That afternoon Patton returned to the plant to see Stepro Abell was present when Patton asked why he was being forced to go back on nights Stepro told Patton that it was because of the agreement between the Company and the Union the assembly work was slow he was the most qualified employee on the 3 belt sander and the Company could not bend any rules for anyone Patton told Stepro that his wife was afraid to stay alone at night Stepro suggested that he get someone to stay with her while he worked Patton stated that he would 33 The Midgetts bid for rip saw operator and offbearer on days in the Corydon plant have to quit because he could not work nights and asked again to be fired Stepro and Abell declined to fire Patton so he left the plant 34 Abell further testified that Patton was required to take his prestrike job on the night shift on March 22 1979 albeit Patton was the only striker who was required to resume his prestrike job whether he wanted to or not Abell s insistence that Patton was required to go back to the night shift on his prestrike job was the result of his interpretation of the agreement with the Union and not any management decision relayed to him Abell also knew that Patton s wife was pregnant when Pattor was a rip saw operator Abell acknowledged that the 4 day week instituted on March 22 1979 was intended to take up the slack on all departments and as attrition or trans fers left vacancies in several classifications the Company did not attempt to fill them There had not been any lay offs in any classifications The subassembly classification on days had at least one employee less senior than Patton at the time of his transfer on March 22 1979 Other em ployees working days were requested to transfer to nights in an attempt to fill some classifications but none save Patton were required to transfer Patton was con sidered a quit on March 26 1979 when he failed to report on the night shift His record card was marked transfer 3-22-79 to establish that his quitting took place in his prestrike job i e 3 belt sander night shift Patton s night shift vacancy occasioned by his quit was posted for bids on March 27 1979 Robert Stepro vice president of personnel testified that Patton had worked his entire employment on the night shift except for his subassembly job on days in Feb ruary and March 1979 Stepro recalled that Patton on March 22 1979 said he could not take his prestnke job because his wife was afraid to stay at home at night Stepro suggested a babysitter or someone to stay with his wife Patton asked why someone else could not be put on the job and Stepro replied that he could not bend rules particularly since the Company and the Union had an agreement to move people back to their prestrike job Stepro then left to attend to other business Stepro testified to several instances involving employ ees being transferred to assigned jobs other than jobs they were holding Stepro s examples of such employees resulted from conversations with other supervisors Ste pro s testimony was not firsthand and lacked specificity In Patton s case he was compelled to either move from the first shift to the second shift or give up his employ ment with the Company because of the November 27 agreement with the Union and the pending charges that the Company had failed to reinstate returning strikers to their prestrike positions The only other employee falling into Patton s category was Barbara Money Stepro stated that the Company compelled her to change jobs and shifts However he could not recall when the incident occurred what job she was working on what shift she had been working what job she was compelled to take or what shift she was compelled to take Stepro did 34 Abell testified that Patton had Union Steward Ritchie with him on one occasion as a witness but no meeting about the transfer took place due to a plant injury Abell had to attend to at the same time 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recall that Plant Manager Heishman told him Money had quit when she was confronted with the reassignment Analysis and Conclusions The General Counsel alleged that Patton was discn mmatonly discharged in violation of Section 8(a)(3) and (1) of the Act In brief the General Counsel argues that Patton was constructively discharged because he was forced to work the second shift or quit his employment The General Counsel contends that the Respondent forced the night shift on Patton knowing his domestic circumstances prevented night work and knowing he would have to quit rather than accept the night shift The Respondent took such action against Patton because he had participated in the strike because the Union had sought a return to prestrike jobs for all strikers and be cause unfair labor practice charges had been filed against the Respondent by the Union The General Counsel s evidence shows that Patton en gaged in union activity to the extent that he attended several union meetings signed a union card and engaged in picketing during the strike There is no evidence that the Respondent discriminated against Patton because the Union had sought the return of all strikers to their pres trike position Indeed the record shows that the the Re spondent welcomed the return of all strikers and many were placed in their prestrike positions on their return Although the Respondent s position throughout has been that striker replacements will not be moved to accommo date a returning striker to his prestrike position the Re spondent has recognized its obligations as a matter of law to reinstate returning strikers In those circum stances where a returning striker s position was occupied the Respondent offered another job to the striker as it did Patton As vacancies occurred the returning striker previously assigned to the vacant classification was non fled and offered to return to his prestrike position I cannot conclude that the Respondent harbored animus toward the Union because they sought a return to pres trike positions for all strikers I can and do conclude that the Respondent knew what its obligations were and im plemented the return to work at the end of the strike pursuant to those obligations in spite of the pending charges alleging the Respondent s failure to do so Thus the Respondent s reliance on the pending charges to sup port its action against Patton although explicitly stated by Stepro in response to the General Counsel is con trary to Its conduct and obvious intent The General Counsel argues that the Respondent s reliance on unfair labor practice charges having been filed is itself evi dence of discrimination Under the circumstances of this case I cannot conclude that such reliance evinces dis cnmmation particularly as it would relate to Patton s re assignment to the night shift Thus the General Counsel is left with basing his case of discrimination against Patton on union activity and participation in the strike There is no dispute as to what occurred between Patton Abell and Stepro which resulted in his cessation of employment 35 The Respondent s requirements are clear and Patton s declination is equally clear The deter mmative difficulty lies in the motivation of the Respond ent The Respondent argues that Patton s union activity is minimal and that the General Counsel failed to show that the Respondent had knowledge of the union activity in any event Arguably the union activity of one em ployee as compared with another can differ by degrees However the Board does not measure the extent of an employee s union activity insofar as it relates to an em ployer s motivation It is sufficient that a given employee was so engaged On the other hand the knowledge of the Respondent must be shown either by direct evidence or by circumstantial evidence The Respondent s mainte nance of its legal position on treatment of returning stnk ers evinces a policy to treat all employees who did not work during the stnke as strikers without regard for actual knowledge that individuals walked picket or in some way actively participated in the strike Whether the Respondent had knowledge or not it treated all its em ployees returning to the plant on November 27 and em ployees responding to the company letter announcing the end of the strike as employees engaged in union activity The strike was voted on by employees in attendance at a union meeting called specifically to consider the Em ployer s contract proposal and conducted by the employ ees negotiating team Therefore the strike was directly related to collective bargaining and assistance to a labor organization The Respondent defends its knowledge of Patton s union activity by showing that Abell was not hired until long after the strike ended and Stepro did not know Patton by sight Suffice it to say that the Respond ent s reinstatement of returning strikers was implemented with a generic policy applicable to all 36 The Respond ent s knowledge of Patton s strike activity is binding on all supervisors and management Abell and Stepro con fined their personnel practices to this policy including their dealings with Patton I conclude that Patton was engaged in union activity and that Stepro and Abell had knowledge of such activity 37 Whether Patton s union activity played a part in the Respondent s decision is an other matter The evidence in the record and the infer ences arising therefrom convince me that the Respond ent s motivation in reassigning Patton to his prestrike po sition in his particular circumstance was his participa non in the strike The Respondent argues that the Gener al Counsel cannot prove a constructive discharge of Patton In support thereof the Respondent cites the Board s concept of constructive discharge (in part) Accordingly when it is shown that an employer imposed onerous working conditions on an employ ee it knew had engaged in union activity which it reasonably should have foreseen would induce that employee to quit a prima facie case of constructive 35 There is a dispute as to the entire substance of conversations be tween Patton and Abell however a resolution is not required since it would not bear directly on the issue of discharge 6 Patton s name was among the names of strikers submitted to the Company on November 22 by the Union 37 NLRB v Link Belt Co 311 US 584 (1941) , ' KELLER MFG CO 785 discharge is established requiring the employer to produce evidence of legitimate motivation The Respondent relies on Patton s work history corn prised entirely of night shift and the fact that his pres tnke position actually pays more money to deny a more onerous assignment or the foundation for inducement to quit The Respondent overlooks the known facts that prior to the strike both Patton and his wife worked for the Respondent Abell knew Mrs Patton became preg nant dunng the strike and did not return to work which created her concern for staying home alone at night The Respondent s knowledge of facts to support a reasonable ness to foresee is thus established The Respondent s knowledge is further augmented by Patton s underned point blank statement that he would have to quit if forced to return to the night shift Patton s request of Abell to be fired to enable him to collect unemployment insurance only adds to the certainty and strength of his conviction not to work the night shift again Any rea sonably prudent supervisor who no longer desired Pat ton s services would have no difficulty recognizing the proper vehicle to implement his desires with apparent impunity The Respondent cites two cases to support the argued failure of the General Counsel s prima facie case of constructive discharge I find both cases distinguish able In Dzihngham the constructive discharge was denied for two employees One because the evidence showed he applied for and was hired by another employ er rather than being forced to quit to avoid a transfer the other employee was shown to have a preference for day work and complained when transferred to nights The evidence showed that he had turned down offers of day jobs before he was transferred to nights making his preference for day work very shallow 38 In Picadzily the employee was denied a constructive discharge finding due to lack of union activity (employee s reference to a union employer was discredited) and the fact that the employee s sick leave was of undetermined length and her job was filled during her absence leaving only one available position for her to fill upon her unexpected return 39 In both cases the allegation failed for lack of proof not because conceptually an employee s prefer ence cannot support a constructive discharging finding In my view an employee s known preference can be the catalyst that causes the employer s reaction of a trans fer and the employee s preference can define the oner ous nature of an otherwise burdenless assignment of work Unlike the cited cases Patton had expressed a desire to do day work and utilized the Employer s proce dures to realize his desire The Respondent s difficulty with recognizing unlawful discrimination as between strikers notwithstanding I conclude that its motivation was unlawful for the follow ing reasons The Respondent contends that if any return ing striker was allowed to remain on other than their prestrike job it was because three conditions were met (a) the employee was needed more on the current assign ment than he was on his prestrike job (b) the employee 38 Dillingham Marine & Mfg Co 239 NLRB 904 (1978) 39 Picadilly Cafeterias 231 NLRB 1302 (1977) did not want to return to his prestrike job and (c) the employee so remaining in a job did not block the return of another former striker to his or her prestrike job As to (a) under the facts of this case the Respondent has not sustained the need for Patton over other employees The established bidding procedure requires manage ment s approval for emplcyees to bid off one job on to another The Midgetts striker replacements were al lowed to bid off Patton s prestrike job that the Respond ent claims was so critical The bid by the Midgetts came at a time when the Respondent had direct knowledge of Patton s circumstances and his lack of desire to return to the night shift Obviously the job was not critical when the Midgett s performed it or they would not have been allowed to bid off Additionally if the job was critical then the Midgett s bid should have been nullified as was Patton s bid to go to the day shift of some 6 weeks pre vious I also conclude that the so called critical nature of the 3 belt sander does not support the Respondent s ad vanced business justification for Patton s reassignment to the night shift The satisfaction of factor (b) is totally evidenced from Gettelfinger through Abell and Stepro The Respondent feigns ignorance of Gettelfinger s knowledge of Patton s special circumstances in working the night shift but Patton s repeated bids for days was well known to the personnel department and first line su pervision In any event the Respondent admittedly was fully aware prior to the actual assignment that such forced assignment to the night shift would cause Patton to quit Factor (c) in the Respondent s defense is unavail able as support for reassignment of Patton to the night shift because the record clearly shows that the day job of subassembly heavy performed by Patton just prior to his reassignment to the night shift was posted for bid by the personnel department Such a bid posting negates any reference to a returning striker being blocked from his prestrike position There is no evidence in the record that the subassembly heavy job was posted in error nor is there any evidence that any objection was raised by a returning striker during Patton s peformance of 6 weeks on the day shift If the Respondent has reference to a re turning striker working nights and awaiting a transfer to his prestrike day shift I conclude that the Respondent has failed to show such circumstances exist I find that such facts or omission of such facts support an inference that the Respondent was more occupied with Patton s situation than that of any other striker Such preoccupa lion vitiates consideration of other strikers circum stances no matter how available to the Respondent they may be becuase the plight of other strikers is an after thought and not a motivating factor The Respondent of fered testimony through Stepro that other employees had been subjected to transfers between job assignments and work shifts against their will and sometimes resulting in their voluntary quit Stepro could not be specific in any one situation nor was any company record made involv ing any incident The probative value of such testimony is wanting and I will give it no more attention now than the Respondent did at the various times of occurrence The lack of facts surrounding each incident dictates no further consideration The record evidence does howev 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD er show that at least one other returning striker had a preference for positions other than what the Respondent offered before her prestrike position opened 40 When her prestrike position did open albeit in another plant she expressed a refusal to assume her prestrike position The Respondent rather than force her to assume the pre strike position simply offered her other positions to ac commodate her desires This additional incident with Snyder involved Gettelfinger as did Patton s expressed preference for day work Stepro stated that he was fol lowing up on Gettelfinger s unfinished details when he attempted to accommodate Snyder I see no reason for accommodation to Snyder but strict construction of the so called agreement with the Union in Patton s case In view of the above I conclude that the Respondent re fused to allow Patton to stay on the day shift pursuant to his prior bid for subassembly heavy and insisted that he assume his prestrike position on the night shift The Re spondent s insistence was not due to business reasons as argued but rather was due to Patton s past participation in the strike I find that but for Patton s strike participa tion the Respondent would have honored Patton s job bid as it did that of other employees and would have ac commodated his preference for day work Further support for this finding is derived from the facts that a less senior person was allowed to stay in sub assembly heavy rather than transfer to the night shift41 and that the Respondent backdated the forced transfer of Patton to March 22 1979 to support its assertion that Patton quit employment as a 3 belt sander his prestrike classification 42 Economic strikers are entitled to reinstatement upon application and if their prestrike positions are filled at the time of application they retain the right to their former position when it becomes vacant The reemployment rights of economic strikers are set out in Laidlaw Corp 171 NLRB 1366 (1968) as are the correlative duties of employers It is clear that an employer s duty of reem ployment may be discharged by an offer of an employ ment position to the employee It is equally clear that the employee s right to reemployment includes his right to refuse and such refusal also discharges an employer s duty to reemploy This is true whether the employee is reinstated to his former position or some other position There is no provision that requires an employee to accept the employer s offer or which allows the employ er to insist that the employee accept the offer Accord ingly I conclude and find that the Respondent violated the Act by insisting that Patton transfer back to the night shift and back to his prestrike position In so finding I reject the Respondent s reliance on the so called return to work agreement with the Union to support its man datory reassignment procedure 40 Record stipulations likewise show that strikers expressed a desire not to return to their prestrike positions and such desires were honored One of the Respondent s stated justifications for transfers to the night shift was to balance the numbers of employees on each shift and ameliorate the lack of work on the day shift 42 I view the transfer record as an attempt to obviate discriminative circumstances d Randall Cunningham—discharged on February 9 1979 Cunningham testified that his rehire in August 1977 was the most recent in a series of three He had asked Chnstley and Hoback for a job and they agreed to help him When he was hired Chnstley told him to keep his mouth shut Cunningham asked what Chnstley meant and Chnstley replied Unionwise The following month Cunningham signed a Teamsters card and attend ed union meetings Cunningham also joined the strike from its inception and walked picket 1 day of every four at the main gate of the Corydon plant Cunningham stated that he hollered on the picket line such utterances as scab don t go to work stay out support us and would go after their cars coming through the gate Miller on duty at the gate for the Company would tell the picket group to get back on the street Cunningham referred to himself as the spokesman on the gate but he had no official title or position within the Union or while on strike On November 27 Cunningham returned to the plant and was reinstated to his prestrike position in the lumber yard His wife also worked for the Company and was re instated with the other pickets During his shift on January 30 1979 Cunningham took a break with the only other employee in the yard Larry Bryant Break time was around midnight and was taken in the maintenance break area (also known as the bedroom break area) Cunningham got a coke and then put money in the pastry machine but the pastry failed to release Cunningham asked Bryant if the machine would shock him and Bryant replied that he did not think so Cunningham stated he was afraid of electricity and would unplug it anyway He did so after pulling the ma chine away from the wall Cunningham testified that he could see the jammed pastry He reached in through the door and grabbed his purchase and pulled it out The op eration took about 5 or 6 seconds In the process of re moving the pastry two dividers from inside the machine fell loose and into the bottom tray where the product usually fell He tried to rehook the dividers in the ma chine but was unsuccessful At that point Bryant suggest ed that Cunningham get away from the machine before he got into trouble Cunningham then went to Bryant s table and finished his drink' and pastry They talked for 15 minutes then returned to work Cunningham stated that he had never unplugged a vending machine before nor had he ever seen any other employee do so He worked without incident until shift time on February 9 1979 At that time he was sum moned to Chnstley s office in the presence of his fore man Gould and Marvin Miller Miller told Cunningham to sit down and sit close so he could hear what Miller had to say Miller told Cunningham that he had some in formation on vending machines from a policeman Cun ningham testified he told me on January the 30th of 1979 I en tered the break room at 11 55 and hit on the ma chines and shook the vending machines and Larry Bryant also did I unplugged the machine and KELLER MFG CO 787 reached my hand up into it and pulled out a pastry And two dividers feel out that separates the pas tries from each other And Larry Bryant stated to get away from it before I got in trouble And so I did And Kenny Collard the Maintenance Man he took a break with us but he was late getting there And he come back and he saw what happened and he said I should put it back in So I went over and tried to hook them back because they had hooks on them So I couldn t so I just went over got the pastry and set down Q Is that what happened? A Yes—No I went into the break area and I put 31:4 into the machine and I pulled a lever and it did trip but it didn t come all of the way out so I did I unplugged the machine I asked Larry Bryant if it would shock me He said I don t think so I said well I m scared of electricity So I went in behind the machine I unplugged it I went around front I reached my hand into it and I got it and I pulled on it and the dividers did pull out and I went around and plugged the machine back in an Larry said I should get away from it so I got my pastry and went on over and sit down Q And then what did you do when you sat down? A I went on and ate my pastry Q Did you explain to Mr Miller what had hap pened? A Yes I told Mr Miller that I put the money in to the machine And he said that you know that you can turn your money into the office? And I said No —I said I didn t know it And I said Joey is never there on our shift to see him In other words I stated to him that the pastry belonged to me that I put the money in and I was going to get what belonged to me He told me that I was de stroymg Company property—that they decided Just to discharge me and that would take care of it Cunningham also stated that he had seen other em ployees stick their hands up in the machine to retrieve their purchases that failed to drop all the way He speed wally named Sandra Powell as one whom he saw re tneve a bag of potato chips in front of Supervisor Donald Foreman Cunningham was aware that Joe the vending machine man stayed at the plant all day and wears a vending company uniform Bryant testified that he and Cunningham took a break on January 30 1979 at 11 or 11 30 p m Both put money in the machine to get purchases Cunningham was get ting a pastry as Bryant got a coke Bryant sat down to drink his coke and Cunningham slapped the machine then went around and unplugged it without stating to Bryant why he was unplugging it Cunningham stuck his arm up into the machine and tinkered with it for 2 or 3 minutes Finally a pastry and a single piece of metal fell into the bottom tray Cunningham showed the piece of metal to Bryant and he told Cunningham to get away from the machine before he gets into trouble Cun ningham then came to the table and sat down Collard the maintenance man then joined them at the table Cun ningham stated that the pastry machine took him again and he had broken it The three talked for about 15 min utes and then returned to work Bryant stated that the Cunningham incident was the only time he saw anyone pull metal pieces of the machine loose when reaching inside the machine Bryant also knew to leave a note for Joe the vending machine man to get a refund whenever he lost money in a machine The several times he did so he did get a refund Rieke Meyer a moonlighting police officer hired to observe company property for theft testified that Cun nmgham and Bryant entered the maintenance break area on January 30 1979 at 11 55 p m As Cunningham walked by the three vending machines he tnpped the coin return levers and checked the return slots Cun ningham did not purchase anything but instead began shaking and rocking the pastry machine He kneeled in front of the pastry machine and put his hand up into the machine He then withdrew his hand and asked Bryant if the machine could shock him Bryant replied that he did not know Cunningham pulled the machine away from the wall and unplugged it causing the light to go out He then repositioned himself in front and put his hand inside again Cunningham moved his hand inside the machine for 3 to 5 minutes As he withdrew his hand Meyer saw a white metal piece in the corner of the bottom tray Cunningham then plugged the machine in and pushed it against the wall After replacing the pastry machine he purchased a drink and sat at the table with Bryant After Cunningham sat down a third employee joined them at the table Meyer stated that Cunningham only put money into the drink machine and did not remove any pastry from the pastry machine The three employees left the break area at 12 15 a m Meyer had observed the break area unnoticed by Cunningham and Bryant from 7 p m January 30 until 2 am on January 31 1979 Meyer made a report to Miller at 4 pm on January 31 1979 including the pastry machine incident involving Cun ningham Miller testified that Meyer reported the incident to him on January 31 1979 Meyer stated to Miller that Cunningham had attempted to jimmy the pastry machine and in the process broke a piece of metal loose Miller decided at that time to discharge Cunningham for mten tionally destroying the property However Stepro was unavailable to process the discharge through personnel and Miller knew that Cunningham was under mvestiga tion by the local police so Miller decided to contact the local police in Stepro s absence Miller also checked with Joe the vending machine man about the condition of the pastry machine Joe reported that the antitheft device had been broken out of the machine the night before and he had a repairman fix it that very morning Miller was unable to contact the local police until February 5 1979 Miller asked the police to fingerprint the piece of metal broken in the pastry machine The police did attempt to lift a print but were unsuccessful Miller asked if the police wanted him to do anything and they asked him to wait Miller waited until February 8 1979 then called the police Miller told the police he had to do something about the damaged machine and they told him it was not 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a police matter so go ahead. Miller scheduled a meeting for the following day in Christley's office with Foreman Gould and Cunningham. At the meeting Miller told Cun- ningham that the situation was serious and read a pre- pared statement to him. Miller said he did not vary from the written statement He did not mention pulling out a pastry, any communication between Bryant and Cun- ningham, the presence of Collard or that Cunningham had attempted to rehook the antitheft device back into the machine. Cunningham told Miller, "Well, I have lost a lot of money in those machines." Miller replied, "Randy, you know we will give you back any money you lose in the machines. All you have to do is ask us." Cunningham made no response. Miller then told Cun- ningham he was discharged for intentionally destroying property. Cunningham did not voice any denials. Stepro testified that he was out of town on a college recruiting trip when the pastry machine incident oc- curred. On his return, several days before the discharge, he discussed with Miller the merits of the discipline de- cided by Miller previously. Stepro concurred and Cun- ningham was discharged for intentionally destroying property Christley denied mentioning union to Cunningham when he was rehired or at any other time during Cun- ningham's employment. Christley testified that what he told Cunningham was, "Just keep your nose clean and everything will be all right" The General Counsel presented several employees to testify that it was common for employees to reach inside vending machines to retrieve purchases.'" Several of these employees stated that the known rule for refunds from vending machines was to leave a note for "Joe" or turn the amount owed over to the foreman. Additionally, no witness knew of any instance where employees broke the machines by attempting to retrieve a trapped pur- chase. Bube's testimony of a damaged vending machine inci- dent was considered in section III(A)(3)(b), supra. Miller, vice president of engineering, explained the op- eration of vending machines in the main break area and the maintenance break area particularly noting the dis- tinctions between the two pastry machines if purchases are trapped, having not fallen all the way to the bottom retrieval tray Foreman David Foreman testified that he has on sev- eral occasions shown or helped employees dislodge trapped purchases from the machines in the main break area. However, he has only offered help when he knows the employee put money in the machine or the fallen purchase is visible. In addition, Foreman has on many occasions gotten refunds for employees who lost money in vending machines. Analysis and Conclusions The General Counsel alleges that the Respondent dis- charged Cunningham for discriminatory reasons unrelat- ed to his admitted damage of the vending machine. Thus, 43 Testimony of Barnum, Bryant, Carver, Thornbull, Mullins, and Wenning though not exhaustive is representative and almost identical to each other the case turns on employer motivation for the discharge. The causality test applied in Wright Line, 251 NLRB 1083 (1980), is equally applicable here. The determina- tion is twofold: first, whether protected activities played a role in the employer's decision (probative of prohibi- tive motivation) and, second, whether the Respondent's asserted business reason is sufficiently proven to be the cause for its action so as to negate the presence of pro- tected activity in the alleged discriminatee The General Counsel must first establish a prima facie case of discrim- ination and he must preponderate on the basis of all the record evidence to prevail. The burden of proof only shifts to the Respondent if the General Counsel presents a prima facie case. As the Board noted in Wright Line, the requirement that the Respondent come forward with evidence of its motivation does not undermine the estab- lished concept that the General Counsel must establish an unfair labor practice by a preponderance of the evi- dence Here, the General Counsel must show that Cun- ningham engaged in protected activity, that the Re- spondent had knowledge of his protected activity, the Respondent displayed animus against unions or Cun- ningham and that Cunningham's protected activity trig- gered the Respondent's action It is undisputed that Cunningham engaged in protected activity in 1977 by signing a Teamsters card, by joining the strike in 1978, and that the Respondent had knowl- edge of Cunningham's picket activity which ceased on November 27 However, it is disputed that Cunningham was more vocal than other pickets and singled out by the Respondent because of his conduct on the picket line More than a dozen strikers were involved in a lawsuit based on picket line conduct at both plants, but Cun- ningham was not among them. Although Cunningham testified that he was the picket's spokesman at the main gate, there is no evidence to define the position or any duties thereof. It appears that the title "spokesman" is self-styled, unofficial and unrecognized. Cunningham's entire demeanor on the stand was as shallow as his "spokesman" title. I was not Impressed by his testimony nor his manner. In several critical points his testimony was not corroborated by friendly witnesses; and where no attempt to corroborate was made, I found his testimo- ny was less than credible. For instance, when he mini- mized his encounter with the pastry machine at 5 or 6 seconds, Bryant and Meyer put the time consumed at 3 minutes or more. Cunningham stated that he asked Bryant about the electric shock, but Bryant was hesitant to so testify. Additionally, Cunningham stated that the dividers holding the product were the two broken pieces, whereas Bryant, Meyers and "Joe" reported only one piece of metal, the "antitheft" device. Meyer, the disinterested witness, hired for a specific purpose to watch the area, testified credibly that Cunningham did not get a pastry from the machine in question.'" Bryant's testimony on the pastry, although aligned with Cun- ningham, was nonspecific and not persuasive. I conclude 4 4 Neither Meyer's presence as an observer nor his purpose is ques- tioned by the General Counsel KELLER MFG CO 789 and find that Cunningham was attempting to purloin a pastry on January 30 1979 and in the process broke the antitheft device in the machine (Such intent on his part was not denied by him in the exit interview ) In so con eluding I considered Bryant s admonishment to Cun ningham instructive Better get away from the machine before you get in trouble As Bryant explained I know what usually happens when you are fooling around with something like that Such an explanation is contrary to the General Counsel s evidence that employ ees always reached inside the machines to retrieve trapped purchases 46 The distinction lies in purchase Further support for the conclusion is found in Meyer s credited testimony that Cunningham did not purchase a pastry that particular evening In view of the above I conclude and find that the General Counsel has not presented a prima facie case of a discriminatory discharge of Cunningham Assuming arguendo I further find that the Respondent had good cause to discharge Cunningham and in the circumstances of this case would have done so in the absence of pro tected activity on the part of Cunningham I note par ticularly that the Respondent was attempting to rectify a theft situation through outside surveillance of the affect ed area the tool crib and maintenance break area Cun ningham s act albeit not actual theft was intentional and resulted in destruction of an antitheft device I shall rec ommend that the complaint allegation involving Cun ningham be dismissed 3 Withheld vacation pay a 1978 vacation—plantwzde shutdown week Alberta Rearden testified that beginning in 1977 she received a 2 week vacation by virtue of her 5 year tenure Her understanding of the vacation policy was that all employees must take their 1 week (first week in the case of employees getting more than 1 week) vaca tion during the plant shutdown in the spring of each year Advance notice of additional weeks is required and in April she asked for the last week in June to take advantage of the Fourth of July holiday Her foreman Cline okayed the requested week She anticipated get ting her second week vacation check in June before taking her second week which was the practice of the Company The strike intervened however starting on May 13 She and the other strikers were not working when the plant shut down She received her week s va cation pay for the shutdown but did not receive her second week s pay During the strike she communicated with Thelma Crosier who suggested she send a note On receiving the note from Rearden the Respondent sent a letter dated August 16 to Rearden which outlined the pay policy for additional vacation weeks when the time was not actually taken off Rearden testified that the letter informed her that she could not be paid until the end of the vacation year November 28 of each year 5 Witnesses for the General Counsel disclaim any knowledge of em ployees breaking machines to retrieve purchases with the single exception of Bube whose knowledge of the breakage was not firsthand and in any event discredited Rearden nonetheless did receive her vacation pay for the second week on September 9 Rearden also testified that the shutdown week always occurred in June but at no particular time In lieu of live testimony the parties stipulated MR PETRISON Your Honor ,,General Counsel proposes the following stipulation That the follow mg named employees were hired by the Respondent on the dates indicated next to their names Rita Shields 8/9/73 Cassie Barnum 6/20/72 Edith Ad amson 9/7/71 and D G Cochran 1/12/78 General Counsel further proposes a stipulation that in the 52 week period preceding the shutdown week of June 25 1978 each of the following named employees had worked in the indicated number of weeks Rita Shields had work and earnings in 17 weeks Cassie Barnum had work and earnings in 20 weeks Edith Adamson had work and earnings in 20 weeks and D G Cochran had work and earnings in 17 weeks We would further propose a stipulation to the effect that each of these four named employees Rita Shields Cassie Barnum Edith Adamson and D G Cochran received one 40 hour—received 40 hours of pay for the shutdown week of June 25 1978 MR CUNNINGHAM Respondent would stipulate to the employees named and their seniority dates Respondent would stipulate to the number of weeks worked by the named employees in the eligibility period and would note that Barnum and Adamson were reinstated pursuant to an Order of the Nation al Labor Relations Board in the period immediately preceding the number of weeks shown in this stipu lation and Respondent would stipulate that each of the named employees received 40 hours of pay for the June 25 1978 vacation period the same repre senting full vacation pay for said period JUDGE GRITTA Do you have any dispute with the modification of the 8(a)(3) s Barnum and Adam son? MR PETRISON We do Your Honor we under stand that it is Respondent s contention that that is the reason that they were reinstated and I think that is a matter to be left to argument in briefs but we certainly do not consider that a significant modifica tion of our proposal MR CUNNINGHAM Your Honor I propose to stipulate to the fact not to our contention simply the fact of their involvement in the indicated period Thelma Crosier testified that Shields Barnum Adam son and Cochran all participated in the strike 46 Shields testified that she was off work from March to December 1977 on combined maternity and injury leave She received vacation pay for the shutdown week of 1977 She returned to work in December 1977 and to her 46 Adamson and Cochran did not testify 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD same job She was reinjured in April and was out for 1 week The following month (May) she Injured her back and went to the hospital She received 13 weeks corn pensatory pay after which she began picketing At the end of the strike she returned to work pursuant to re ceipt of the Company s 5 day letter Shields received va cation pay for 2 weeks for her 1978 vacation Shields ac knowledged that the injury compensation checks she re ceived for 13 weeks were from the Travelers Insurance Company Merrill Lillpop a striking employee also testified that he received his 1978 vacation pay on his request during the strike b 1979 vacation Barnum testified that Stepro held a meeting on March 22 1979 with approximately 150 employees He outlined the eligibility requirements for receiving shutdown weeks pay as well as pay for additional weeks of vaca tion Stepro stated that all employees who had received pay in 32 pay periods would get a paid vacation All em ployees employed less than a year who worked a certain number of pay periods would also receive prorated vaca tion pay Stepro said these were the rules and they would be followed There would be no special rules cre ated Barnum acknowledged that she stated in her affida vit that Stepro did not say anything about how the people who had been on strike would be hurt by the va cation rule he announced On leaving the meeting Barnum asked her foreman Thevenott if the people on strike who had been employed more than a year would they get vacation pay after they had 32 pay periods Thevenott said he would check with the office and later told Barnum that unless they had 32 pay periods at the time of plant shutdown they would not get vacation pay Thevenott added that anyone with more than 1 year s service did not fall into the prorated category Al though Stepro allowed time for questions there were no questions asked Betty Haub testified that Stepro spoke to her group of 50 employees on March 22 1979 about vacation eligibil ity She could not recall his exact words but he said the shutdown week for 1979 would be June 6 or 3 He said an employee must have 32 weeks work to qualify and some employees would be eligible for a 4 day or a 3 day vacation pay Stepro stated that people who had come back off strike would not be eligible for vacation pay in shutdown week Stepro maybe said that strikers would not be eligible for prorated vacations Haub testified that on April 11 1979 she asked Ken Abell if the striking employees were going to get a vacation check Abell re plied that he would find out On April 23 1979 Abell told Haub that the strikers were not entitled to vacation pay for 1979 Ken Abell admittedly spoke to Haub about the 1979 vacation Betty asked him whether she would get a vaca lion Abell told her it depended upon her number of pay periods recorded Later on April 23 1979 as Abell was walking through her department Haub spoke to him asking if he knew about her vacation Abell told her that according to the pay plan booklet you had to have 32 pay periods prior to being eligible to take a vacation and that applied to everyone in the New Salisbury plant Abell denied telling Haub she would not get her 1979 vacation pay and said he did not know how many pay penods Haub had worked There was no further conver sation Stepro testified that he held employee meetings to ex plain the vacation eligiblity requirements He used charts to show the two eligibility requirements of continuous employment for 1 year prior to the annual plant shut down and that an employee must have received earnings in at least 32 pay periods in the year pnor to shutdown Stepro stated there were only two exceptions those em ployees employed less than a year get a prorated vaca non pay of 4 days or 3 days depending on the number of pay periods worked also any employee who had suf fered a plant injury was allowed to count the time off due to injury in accumulating the 32 pay periods up to a maximum of 27 weeks of injury Stepro denied any state ments of vacation eligibility of strikers as opposed to nonstrikers or that he stated that striking employees would not be paid for 1979 vacation He did state that the vacation week and vacation pay eligibility would be determined and administered exactly as it had been in the past He also stated there would not be any changes made from the past rules nor would any special rules be created for anyone Stepro then stated that shutdown week for 1979 would commence on June 3 The Respondent s vacation policy has remained the same for the last 10 years Its provisions are as follows (G C Exh 49 p 26) 4 Vacations Plant wide vacation week will be taken within the period starting with the last full work week in May and ending the first full week in July The Compa ny will notify the Employees at least 30 days prior to the start of vacation which week within this period will be taken to least interfere with orderly operations and regular employment The plant will be closed during this week and all Employees eligi ble shall take one week s vacation at this time with the exception of Maintenance Employees Firemen Watchmen and other Employees with whom the Company has arranged to do special work sched uled for this period who shall take their vacation at a time arranged between these Employees and the Company All vacations must be taken during the pay plan year 5 Eligibility and Pay All Employees of the Company who have continu ously been in the service of the Company for a period of one year prior to the beginning of the va cation week designated in paragraph 4 and have re ceived earnings from the Company in at least thirty two pay periods during such year shall be eligible for the 1 week s vacation mentioned in paragraph 4 and be paid for forty hours times the average straight time hourly earnings (as determined in paragraph nine of the Benefit Plan) with the excep tion that regular Boiler Room Employees shall be KELLER MFG CO 791 paid for forty eight hours times the average straight time hourly earnings A maximum of 27 weeks in which an Employee re ceives no earnings from the Company because of a plant accident shall be counted as pay periods in de termining such Employee s eligibility The number of weeks counted because of a plant accident to de termme eligibility for vacation pay shall apply only to Employees with one or more continuous years of service with the Company All Employees of the Company who have contmu ously been in the service of the Company for a period of more than six but less than nine months prior to the beginning of the vacation week desig nated in paragraph 4 and who have received earn ings from the Company in at least 2h3 of the pay periods during his periods of employment shall be eligible for the 1 week s vacation mentioned in para graph 4 and be paid for 24 hours times the average straight time hourly earnings as determined in para graph 9 All Employees of the Company who have continu ously been in the service of the Company for a period of more than nine but less than twelve months prior to the beginning of the vacation week designated in paragraph 4 and who have received earnings from the Company in at least 2/3 of the pay periods during his period of employment shall be eligible for the 1 week s vacation mentioned in paragraph 4 and be paid for 32 hours times the av ,erage straight time hourly earnings It is further provided that effective as of June 1 1966 if an Employee who is otherwise eligible should die not more than thirty (30) days prior to the beginning of the designated vacation week then the vacation pay due him will be paid to his desig nated beneficiary Executor and Administrator 6 Eligibility for Additional Vacation All employees who have finished their fifth year of continuous employment within the pay plan year (or prior thereto) shall receive an additional one week s vacation and all Employees who have fin ished their fifteenth year of continuous employment within the pay plan year (or prior thereto) shall re ceive a third week of vacation with pay for forty hours (Regular Boiler Room Employees 48 hours) times the average straight time hourly earnings pro viding such Employee has received earnings from the Company in at least thirty two pay periods during the year immediately preceding the start of the second or third week s vacation All vacations shall be taken during the pay plan year A maxi mum of 27 weeks in which an Employee receives no earnings from the Company because of a plant accident shall be counted as pay periods in deter mining such Employee s eligibility Employees eligible for two weeks vacation and Em ployees eligible for three weeks vacation shall be re quired to take one week of vacation as provided in paragraph 4 Employees eligible shall be allotted the second and third vacation week desired according to senionty up to a maximum of 10% of the Employees in each department If more than 10% is requested and the Company sees fit to do so they may be granted Employees shall inform their Foreman two weeks in advance of the start of the week desired Analysis and Conclusions , A 1978 Vacation The General Counsel s allegation is framed From about May 13 1978 until about September 9 1978 the Respondent refused to grant vacation pay due to its em ployees because they engaged in the strike described above in paragraph 5(a) The strike is defined as a con certed cessation of work from May 13 1978 to about November 28 1979 The General Counsel explained that the allegation dealt only with the pay for the plant shut down week i e 1 week s vacation pay The several witnesses offered to support this allegation received their 1978 shutdown pay without incident The witnesses also received their pay for the extra weeks of vacation to which they were entitled All the pay was received by the witnesses while they engaged in the strike In addition to the witnesses a stipulation of record shows that four employees received 1978 vaca tion pay albeit they had not received pay in 32 pay pen ods prior to shutdown All four employees were stnkers without regard for any other circumstance The General Counsel s presentation must include evi dence of discrimination against the striking employees In the least there must be some evidence to support an in ference that striking employees did not receive their va cation pay because they engaged in protected activity There is no evidence of record showing that any striker did not receive 1978 vacation pay Rather the evidence shows that strikers did receive their vacation pay for 1978 in spite of the protected activity i In such circum stances there is no argument of discriminatory motiva tion Indeed the General Counsel apparently abandoned the allegation since his brief contained no argument or statement of facts on the 1978 vacation pay Neither was any motion to withdraw or amend out the allegation contained therein I conclude that the General Counsel s proof does not show any prima facie discrimination or disparity between strikers and nonstrikers but rather shows an accommodation of the strikers by the Respond ent See NLRB v General Time Corp 249 NLRB 1204 (1980) enf 650 F 2d 812 (7th Cir 1981) Accordingly I find that the Respondent has not violated Section 8(a)(3) and (1) in its payment of the 1978 vacation pay to its em ployees and I shall recommend the allegation be dis missed B 1979 Vacation The General Counsel during the course of the trial amended his complaint in Case 25-CA-10639 to include After subparagraph 7(b)(n) add the following as sub 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD , paragraph 7(b)(m) Refusing to grant vacation pay in 1979 to its employees because they engaged in the strike described above in subparagraph 5(a) The General Counsel argues that two elements are clear in the consideration of whether the Respondent re fused to pay its employees vacation pay in 1979 He states that every employee who participated in the entire strike was denied vacation pay in 1979 and that the Re spondent failed or refused to present any substantial busi ness justification for its refusal to pay The General Counsel overlooked the element of discrimination which he must show directly or indirectly before the Respond ent has any burden of proof supportive of its conduct The General Counsel did offer testimony and stipulations that showed the Respondent has in the past paid vaca non moneys to employees who have not satisfied the work requirement of receiving pay in 32 pay periods prior to shutdown (supra 1978 vacation consideration) That same evidence showed the recipients to be strikers The Respondent offered testimony that in the past any employee who did not receive pay in 32 pay periods prior to shutdown week did not receive the shutdown pay These related instances involved employees off work due to nonwork related injury or sickness thereby causing the employees to fall short of the required 32 pay periods Crosier s testimony and the General Coun sel s cross disclosed a unique method of determining which employees satisfied the work requirement In turn the testimony showed that errors could be made and em ployees could receive vacation pay to which they were not entitled The record also shows that the Respondent did not attempt to recover the wrongful payment wheth er the employee was a striker or a nonstnker Although the General Counsel argues that nonstrikers received 1979 vacation pay while strikers were denied the pay even though the strikers may have worked more pay pe nods during the qualifying year than the nonstnker this is an argument that is unsupported by evidence in the record 47 Although the assumed 'facts may in all respects be reasonable I will not assume such critical facts to support the General Counsel s burden of proving dis cnmination In addition there is no allegation nor evi dence proffered to attack the vacation policy and its eh gibility requirements as applied in 1979 or any preceding year Further there is no allegation nor proffered evi dence to attack the selection of June 3 as the start of shutdown week in 1979 The General Counsel does argue that the Respondent chose June 3 to systematically cut out the striking employees from receiving vacation pay under its established policy The General Counsel has no support for this argument other than suspicion Mere suspicion will not carry the day for the General Counsel 48 The General Counsel would attempt to bol 47 The General Counsel subpoenaed the vacation pay records of the Respondent and they were produced at the trial Albeit I denied the General Counsel trial time to pursue the records I did allow both the General Counsel and the Respondent time until briefs were due to submit an exhibit disclosing the facts shown in the records No such exhibit was forthcoming 8 The record evidence including testimony of the General Counsel s witnesses is all to the contrary Particularly the exhibit which traces the shutdown week for the previous 18 years The period for shutdown ster this suspicion with the alleged enormous animus ex hibited by the Respondent but here again absent remote references or statements of counsel there is no evidence in the record to which he points In my view there is ■ none Barnum s testimony implied that the Respondent in its prevacation meeting informed the strikers that they would not receive vacation pay for 1979 while informing replacement employees or employees who had aban doned the strike that they would receive vacation pay for 1979 Stepro denied any reference to striking or non striking employees and their respective receipts of vaca tion pay He testified that if the requisite pay periods are satisfied then the employee will receive pay I discredit Barnum s attributed reference to striking employees by Stepro and credit Stepro s denial Barnum s demeanor was not impressive and she appeared surly on cross I did not feel that she was cooperative or making a genu me effort to recall facts In addition to her demeanor I note that in her affidavit she stated specifically that Stepro did not allude to striking employees but stuck to the vacation policy as outlined in the Respondent s hand book I am constrained to conclude that the damaging reference to Stepro was more imagined (to support the case) than real otherwise the contrary statement in the affidavit would not have existed In addition if Stepro had made such a reference she would have little cause to ask his subordinate Thevenott if she could expect to receive vacation pay As further support I credit Stepro and Thevenott in that regard Both appeared straightfor ward and made a genuine effort to recall the facts as they unfolded Haub s testimony in one respect endorsed a statement of Stepro to the effect that the people who came back off strike would not be eligible for vacation pay in shut down week She went on to say that maybe he said the strikers would not be eligible for a prorated vacation Haub stated that she could not recall Stepro s exact words Her recall is subject to question when she states Maybe I have difficulty accepting her testimony as accurate if not truthful simply because of her own ex pressed uncertainty If a witness admits her testimony is predicated upon speculation or guess then her testimony does not constitute substantial evidence and therefore has no probative value Also Haub after the meeting sought an explanation from a Stepro subordinate rela tive to her eligibility for 1979 vacation pay Any refer ence by Stepro to striking employees if it had occurred at the meeting would not have called for any further in quiry by Haub Both Haub and Abell stated that Haub made the same request of Abell on two separate occa mons I therefore do not credit Haub s testimony of the March 22 1979 meeting chaired by Stepro Ken Abell credibly testified that in response to Haub s inquiry about her 1979 vacation pay he told her that ac cording to the plan each employee had to have 32 pay periods prior to being eligible to take a vacation Wheth er Abell was avoiding a reference to the striking employ ranges from May to July In 6 previous years the 3d week of the penod has been chosen as it was in 1979 KELLER MFG CO 793 ees or not the fact is he did not state that striking em ployees would not receive vacation pay for 1979 Lastly the General Counsel relies on several Board cases in which violations were found when strikers did not receive vacation pay Elmac Corp 225 NLRB 1188 (1976) Knuth Bros 229 NLRB 1204 (1977) Thorwin Mfg Co 243 NLRB 620 (1979) In my view the cited cases do not aid the General Counsel s prima facie burden In Elmac the Respondent changed its vacation policy during the strike which supported the inference that the resultant denial of pay was because of protected activity The lack of evidence of business justification for the change in policy established that the denial of pay to the strikers was motivated by the protected activity and the Board so found Here the vacation policy remained as it had been for 10 preceding years with no substantial departures in ap plication of the policy In Knuth Bros the Board found no evidence of an 8(a)(3) violation in the employer s application of its es tablished vacation policy to the replaced strikers (all strikers had been replaced) although the result was that no striker received vacation pay There was no evidence that the refusal of pay was based on their engaging in protected concerted activities The Board did find that the terms of the vacation policy gave the employer a prerogative of replacement by March 1 the cutoff date for eligibility (particularly when the strike includes March 1) The Board found that the employer s preroga tive of replacement coupled with the cutoff provision re sulted in the threat of an economic loss as a consequence of employees engaging in activity protected by the stat ute The employer simply hired a replacement for a stnk er before the March 1 deadline and the cutoff provision removed the replaced striker from the active payroll and any consideration for vacation pay The Board stated that withholding benefits because the employees were not on the active payroll is discriminatory because the loss is a consequence of engaging in protected concerted activities and violates Section 8(a)(3) The Board noted particularly that the strikers affected by the cutoff provi sion had previously accumulated the vacation benefits during the year prior to the March 1 cutoff date therefore their loss the accumulated benefits was directly related to their removal from the active payroll on March 1 Here the strikers were treated no differently than non strikers and without regard to whether the Respondent had replaced them during the strike Moreover no bene fits accrue or accumulate to any employee during the year prior to shutdown What does accumulate are weeks actually worked No benefit inures to employees as a result of employee status absent active work for wages Therefore the strikers herein have not been sub jected to a loss of benefits simply because they had not accrued any benefits prior to their engaging in the strike I conclude and find Knuth Bros not dispositive of the 1979 vacation pay issue In Thorwin the strikers had likewise accrued some va cation benefits before the advent of the strike It was these previously accrued and unused benefits which the employer denied to the replaced strikers on the basis that unused vacation benefits are forfeited when an employee leaves the company (The employees were not able to use their accrued benefits within the specified vacation year because they were on strike ) The Board found that the employer s required forfeiture of accrued economic benefits by the replaced strikers was the consequence of their protected activities and violated Section 8(a)(1) In the instant case the loss of vacation pay is indirectly the consequence of engaging in protected concerted ac twines but I view the Board s reasoning as requiring a direct consequence of protected activity Here the em ployees concerted withholding of labor (engaging in a strike) created a hiatus in their earnings in specific pay periods That hiatus caused some if not all to fall short of working in 32 pay periods and thereby lose their va cation eligibility The same hiatus is caused by any em ployee missing work for whatever reason excepting only a work related injury and that has a limit of 27 weeks In the absence of evidence of disparity of treatment be tween strikers and nonstrikers with regard to the applica tion of the established vacation policy and in the mourn stances which show that no employee whether striker or nonstnker accrues or accumulates any vacation benefits I conclude and find that the Respondent has not violated either Section 8(a)(1) or Section 8(a)(3) by refusing vaca non pay for the shutdown week of 1979 to employees who engaged in the strike I shall therefore recommend that the allegation relating to the 1979 vacation pay be dismissed C Alleged 8(a)(5) Refusal to Bargain Relevant Events It is undisputed that the parties began negotiations for a contract on November 1 1977 Each party was repre sented by a team of negotiators The Respondent used L B Cross attorney B J Stepro vice president of person nel Bob Byrd vice president of finance Leo Gettel finger personnel manager and John Hoback vice presi dent of manufacturing The Teamsters used Larry Moxley business representative of Local Union 89 John Wientjes assistant to the president of Local Union 89 Homer Wiseman employee Hannah Gilliland employee Merrill Lillpop employee Roger Barnickle employee J B Ritchie employee Sam Shroud employee Bruce Davis employee Marilyn McLenore employee Sharon Snyder employee and Charles Chambers employee 4 9 The following is the substance of negotiation meetings membership meetings and individual meetings between the parties and/or their principals as gleaned from the uncontroverted testimony of several witnesses and the objective evidence received from both parties Where a factual issue did exist I have resolved it and indicated credibility There were 23 meetings between the parties from No vember 1 1977 through February 3 1979 with several 4 9 Leo Gettelfinger John Wienties Roger Barnickle J B Ritchie Sam Shroud and Bruce Davis were not called to testify in this proceed mg John Hoback Homer Wiseman Hannah Gilliland Merrill Lillpop Marilyn McLenore Charles Chambers and Bob Byrd although called to testify were not questioned about the substance of negotiation meetings 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union membership meetings interspersed during the latter stages of negotiations From December 21 1977 to the final meeting the parties utilized the Federal Mediation and Conciliation Service by mutual consent 1 The first meeting November 1 1977-2 30 to 3 15 p m The Union presented its initial contract proposal The parties discussed the proposal at length with the Re spondent commenting on the absence of a managements rights clause Moxley the union spokesman stated that the Company has two basic rights the right to hire and the right to pay The parties also discussed the role of stewards as proposed and agreed that no one steward could call a strike Moxley explained the Union s position on union security employees and management are hap pier in the long run with union security operations are smoother when everyone joins The Union requested benefit information and the Respondent agreed to furnish that requested 2 The second meeting November 11 1977-10 30 am to 2 30 p m The Union submitted several written proposals of arti cies not contained in its initial proposal Those new pro posals as well as the initial proposal were discussed in detail by the parties Cross the company spokesman stated that the Company has some reservation about union security but if we are convinced union security would be acceptable Moxley replied that he thought the Union could convince the Company that union security is good The parties explored the possibility of union se cunty less than what the Union proposed Moxley stated that maintenance of membership is better than nothing at all but we would still have to try for full union secu nty The Union also wanted any union security to in elude checkoff The Union s proposal did not contain a no strike proposal and when asked about its absence Moxley replied We re not opposed to a no strike clause if union security and checkoff are tied down 3 The third meeting November 15 1977-6 30 to 7 05 p m The Respondent tendered its initial contract proposal containing a no strike and a managements rights provi sion Cross pointed out that the proposal did not contain union security or checkoff pending convincing negotia tions between the parties The Respondent contended that the Company has the right to promulgate and en force reasonable plant rules and regulations and any ob jection raised to reasonableness can be grieved The Union took the position that rules and regulations should be negotiated and included in the contract Following a discussion the parties agreed that rules and regulations would be subject to the grievance procedure The parties continued the meeting with discussions of the Respond ent s contract proposal 4 The fourth meeting December 1 1977-2 30 to 5 30 p m The Union stated that the company proposal was un acceptable The Union wanted to work from their own proposal not the Company s The Union also wanted to negotiate for the company guards and have them includ ed in the bargaining unit The Company said a UC peti tion was needed to put the guards in the bargaining unit Counterproposals were discussed on several items such as gnevance arbitration seniority overtime promotions and the number of stewards (the Union proposed one steward for each department in each plant about 30 and a chief steward) The Company wanted 18 (something less than the number of departments involved) The Union rejected a managements right clause at this time and suggested that existing plant rules and regulations should initially be negotiated The Company agreed to redraft seniority promotion and overtime 5 The fifth meeting December 2 1977-9 30 a m to 245 p m The Union rejected the Company s proposal on pro motions and proposed a standard job bidding procedure instead The Company withdrew the promotion clause agreeing to submit a bidding procedure Bargaining unit work by supervisors was discussed but no agreement was reached The parties did reach tentative agreement on overtime workweek notification of Saturday work premium pay both 1 1/2 and double time mandatory and voluntary department overtime selection and rest pen ods Call backpay was discussed but no agreement was reached The Union proposed that changing scheduling of hours of work should be within the work rules negoti ated as part of the contract 6 The sixth meeting December 16 1977-2 to 4 47 pm The Union said that they must have a union security clause and they would not agree to a no strike clause without a union security clause The Company stated that any language within reason would suffice for a no strike clause and the Company is not opposed to some form of union security such as maintenance of member ship or modified forms of union security with well de fined and legal escape clauses but cannot at this time accept full union security The Union made a proposal on bargaining unit work but the discussion only led to the Company agreeing to counterpropose Other clauses union visitation nondiscrimination safety and health and notices to employees were discussed but no agreements were reached 7 The seventh meeting December 17 1977-9 a m to 12 26 pm The meeting began with a discussion of bargaining unit work by supervisors Shortly thereafter the Union suggested discussing union security The Company said their most recent review did not produce anything new and noted that it is an extremely important issue The Company listed unit placement of guards managements KELLER MFG CO 795 rights grievance and arbitration number of stewards job bidding overtime pay double time break periods several work rules call back pay holidays vacations pensions hospital and insurance wages nondiscnmma tion no strike complete agreement no waiver provision and termination clause as the open issues The Company suggested FMCS may help settle the issues that are con flicting with failure to agree on union security If the un related issues could be tied up only union security man agements rights no strike and economics would be left The Union agreed to contact FMCS 8 The eighth meeting December 20 1977-10 am to 3 50 p m The Union opened the meeting with unit placement of guards The Company said they would agree to the NLRB deciding the guard issue in a UC proceeding When managements rights was raised the Union stated that managements rights would not be discussed unless tied to union security The Company offered its new proposals on overtime and job bidding A caucus did not produce agreement and the Union suggested discussing number of stewards arbitration seniority and break pe nods A lengthy discussion of each ensued but with no agreement on particular language 9 The ninth meeting December 21 1977 This meeting was conducted by FMCS The number of stewards was discussed jointly with the Company stat mg that a new proposal they were working on may be fruitful The Union was agreeable to combining depart ments with less than 12 employees under a single stew ard The Company told the mediator if managements rights and no strike clauses were nailed down every thing else may fall into place The mediator separated the parties at this juncture 10 The 10th meeting January 4 The Company submitted new proposals on job bid ding grievance and shop stewards The parties were separated by the mediator The proposals were discussed but no agreement was reached 11 The 1 1 th meeting January 5 The Company submitted a package proposal including economics The holiday clause included an additional holiday The parties were separated After the Union considered the package proposal they countered with reject the managements rights standing on union secun ty and checkoff as proposed November 1 1977 standing on split cost of arbitration stewards as initially proposed open job bidding as proposed holidays as proposed va cations as proposed reject and scrap employer pension plan and substitute Teamsters plan at new rate to be de cided with back years for each employee paid into the plan by the Employer reject and scrap company hospital insurance plan and substitute Teamsters health with dental optical and pharmacy nders wage increase of $1 each year for 3 years nondiscrimination clause as pro posed all plant and safety rules negotiated separately and in contract termination clause as proposed no subcon tract clause as proposed and reject company proposal on no strike clause The meeting closed with no agreements having been reached 12 The 12th meeting January 6 FMCS conducted this meeting with the parties sepa rated The Company presented its final offer to the medi ator with a cost analysis of the Union s economic pro posals of the preceding day The Union caucused and discussed the cost analysis The parties were joined by the mediator and the company proposal was given to the Union with the addition that wages would be retroactive if the contract was ratified within 7 days The Union agreed to present the company proposal at its membership meeting of January 15 The membership did vote on the contract proposal on January 15 and re jected it 13 The 13th meeting February 16 The Company resubmitted its January 6 package pro posal with some changes and indicating clauses previous ly agreed to The Union again rejected the company pro posal The Union made several proposals through the mediator guards should be in the unit split cost of arbi tration one steward per shift per department seniority as originally proposed include down bidding and post all vacancies not just first two daily overtime after 8 hours 1 1/2 time pay on Saturday double time on Sunday and triple time pay for work on holidays increase break pen ods to 20 minutes change shift starting times paid lunch period three additional holidays vacations as originally proposed Teamsters pension plan new disability pen sion Teamsters hospital plan wages plus 80 cents first year 75 cents second year and 75 cents third year and retroactive to December 1977 jury duty and funeral leave as originally proposed maternity leave to be decid ed by any doctor rules and regulations to be in contract termination clause as originally proposed union security and checkoff as prioposed and delete the no strike clause Neither party was prepared to move on its proposals The mediator reported to each party that they were deadlocked at impasse Moxley said if the Union was forced to strike they would pick their own time The following week the Company sent a letter to the Union of its intention to implement the wage increases and benefits last offered and rejected The Union made no response The changes became effective February 27 1978 14 The 14th meeting March 14 The mediator suggested to both parties that they pool no strike/no lockout with union security and checkoff Cross met individually with Moxley who suggested a clause as in Hobarts to settle the union security issue 50 Hobarts contained a maintenance of member ship clause with several escape periods for the employ ees Moxley said otherwise a strike was imminent Moxley stated that the Union could agree to a Hobarts 5° Hobarts is a company under contract to the Union 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD clause In addition the work rules inclusion of guards in the unit number of shop stewards job bidding holiday pay eligibility and additional holidays as proposed by the Union were discussed 15 The 15th meeting April 17 The Union reviewed several proposals with the Corn pany including jury duty bargaining unit work funeral leave reporting pay work rules union security check off wages holidays insurance and job bidding The Company asked for a proposal on managements rights and no strike clause stating that managements rights and no strike were as important to the Company as union se cunty and checkoff were to the Union The Company then stated that no agreement could be reached on union security and checkoff until agreement on managements rights and no strike The parties with the mediator s assent agreed that managements rights and no strike were tied together as was union security and checkoff The Union stated that it wanted to avoid a strike Moxley and Cross met independently and Moxley told Cross that unless union security was considered there would be a strike Cross questioned the inclusion of any escape clause such as previously mentioned by the Union as contained in Hobarts Later the Union submitted a proposal on union security and checkoff in writing to the Company The proposal included a clause giving the Union and the Company the right at any time to notify individual employees either orally or in writing of the provisions of union security The parties then closed the meeting 16 The 16th meeting April 20 Cross asked Moxley what it would take to avoid a strike Moxley replied that something would have to be done about union security The Company counterpro posed a union security clause with an escape period of 31 days in December of each contract year but with check off deleted The proposal was added to the Company s package proposal that was still on the table Moxley stated that the proposal would settle union security but questioned the lack of checkoff as well as the wages and insurance Moxley wanted checkoff 1 percent more on wages and 5 percent on the company insurance The Company agreed to include checkoff 1 percent on wages and 5 percent on insurance Moxley agreed to recommend the proposal to his members The Company made a copy of the package proposal which included a managements rights clause a no strike clause included the wage increases insurance increase and union secun ty and checkoff as negotiated on April 20 The revised package proposal was sent to the Union On April 23 Moxley phoned Cross at home and in formed him that the membership had turned down the Company s proposal 17 The 17th meeting April 27 Moxley opened the meeting by stating a five point issue existing between the parties holiday pay the number of days absent before automatic termination the terminal date of the contract wages and insurance and full union security with a 15 day escape period before the terminal date of the contract To support the addi tonal wage demand the Union presented a survey of av erage hourly earnings in the Louisville Kentucky area for the furniture industry No agreements were reached following discussion and the meeting closed 18 The 18th meeting May 1 The parties met jointly and Respondent asked that the issues separating the parties be identified The union committee responded with approximately 30 issues unit placement of guards but agreeing to join the Company in a UC petition objection to Company determining stand ards of production under managements rights as pro posed response time of 3 days instead of 2 days when recalled from layoff indecision on whether employees should be laid off by classification or by department fail ure of insurance and fringe benefits to continue during layoff number of paid holidays job bidding should in elude down bidding all vacancies rather than only first two should be posted for bid Company s discretion in determining disqualification during trial period following a successful bid freezing bidded employees for 6 months method of computing overtime pay as to average or straight time earnings premium pay for shift carryover notice of overtime to employees number and length of break periods management s right to change shift hours paid versus unpaid lunch periods hours for reporting pay eligibility for holiday pay inclusion of holiday paid hours in computation of overtime pay actual day for ob servance of holidays method of calculating vacations Teamsters pension plan inadequacy of the company in surance programs management s right to change the piece rates based on technology funeral leave jury duty safety and health and wages The Union wanted 40 cents per year for 3 years The Company responded that there was a lot of issues and some were new Where needed the individual committee members explained the employees point of view on each of the issues Moxley stated that he could accept the managements rights and no strike clauses if the Company could accept union security with a 15 day escape period and checkoff The Respondent caucused to consider the issues After caucus the Respondent stated that some issues can be ac cepted whereas others cannot The Respondent agreed to change the vacation calculation to calendar year change automatic termination upon absences to 3 days continue insurance coverage for 30 days if laid off accept down bidding make overtime voluntary if notice inadequate use average earnings in computing overtime pay time and a half pay for holiday hours worked and amend scheduling of shutdowns Moxley said the corn mittee forgot the language of transfers issue The Com pany asked what the Union wanted Moxley showed Cross another company s contract and Cross cut out the transfer language and pasted it in the Company s propos al Moxley added that they needed some major medical and Cross agreed to 5 percent which was acceptable to the Union Moxley said the Union also wanted a spring termination date of March 15 The Company agreed to compromise on the date Cross asked about the manage KELLER MFG CO 797 ments rights and no strike clauses Moxley replied that there were only two issues left union security and money and checkoff and no strike The Company sug gested meeting again Wednesday May 10 Moxley opined that he was not sure the people could wait that long The mediator counseled both parties to make every effort to settle the issues and adjourned the meeting 19 The 19th meeting May 10 The parties met jointly and the Respondent submitted its final offer which incorporated the previous conces sions of May 1 51 The parties went over the Company s final offer The mediator separated the parties for their individual consideration The parties rejoined later and the Company agreed to change the termination date from January if other issues were resolved The mediator pointed to two issues money and union security The Union said 40 cents each of 3 years and the Company said 6 5 percent each of 3 years with 5 percent for major medical The Union proposed one 15 day escape period and the Respondent proposed an annual escape period of 31 days Moxley asked the committee if they could rec ommend the Company s final offer and they indicated they could not The mediator adjourned the meeting On May 12 FMCS phoned Cross and stated that the Union would accept three escape periods of 15 days in June of each year With regard to whom supplies forms to employees pursuant to the union security clause the Union wanted to supply them rather than the Company Cross called Marion Winstead and told him the Re spondent would accept the changes by the Union Win stead injected one final issue—to make the proposed wage increases cumulative rather than noncumulative Cross stated he would get back to him Cross later called Winstead and told him that cumulative wage increases were agreeable but Winstead said the package could not be sold to the membership at this time Cross testified that Winstead said I thought the package would fly it won t There s going to be a strike We 11 let them strike awhile and maybe this package on union security will look better to them then The timing is not right Cross replied Well let me know when the timing is right let me know when that package will fly The strike began on May 13 20 The 20th meeting June 5 The parties met separately with FMCS The Union in jected strike settlement issues into the negotiations by stating that three issues existed full union security status of replacements and status of litigation No agreements were reached and the meeting adjourned On June 21 Cross notified FMCS that the Respondent intended to withdraw its final offer of May 10 that re mamed on the table Its stated purpose was because the Union went on strike anyway and was now increasing its demands By telegram to the Union on June 23 the Re spondent did withdraw its final offer of May 10 " In evidence as G C Exh 12 21 The 21st meeting July 114 The mediator asked both parties to review their post lions The Respondent stated that the Lunaccepted por lions of its May 10 proposal had been withdrawn but they are willing to talk about any of them The Union said the only issue that existed on May 12 is still the only issue—union security The Union then asked if the Com pany had any proposal The Company responded not at this time The Union then submitted a contract proposal incorporating the previous changes suggested by the Company and included a 31 day escape period just prior to termination in the third year of the contract and pur suant to the National Labor Relations Act In addition the Union proposed that all striking employees be re turned to their old job Cross stated that the law allowed for one union deauthonzation election each year and the Union s proposal was for less With regard to the re placement employees Cross stated that the Union wants the Company to abandon the replacements who have gone through a lot for the Company The Company cau cused then rejected the Union s proposals on union secu nty and returning the strikers to their old jobs The Company proposed a contract containing a limited union security clause substantially identical to the clause contained in the contract between the Union and Air guard Industries Inc of Louisville Kentucky In con Junction with the proposal the Respondent stated We will recall strikers as replacements leave The Union caucused then proposed going back to the Respondent s May 10 union security proposal and making several changes in sections 2(a) (b) and (e) which were orally proposed by Moxley The Union proposed a maintenance of membership for employees hired before May 12 and compulsory membership for employees hired after May 12 The escape clause was modified to allow a 30 day period beginning on the 90th day prior to termination of the contract in which employees could withdraw from the Union The withdrawal procedure was to be that de signed by the NLRB for union deauthonzation No agreement was reached and the meeting was adjourned 22 The 22d meeting August 30 The meeting opened with a discussion on the status of strikers and striker replacements The Union wanted all replacements to join the Union and all strikers to mime diately be returned to their jobs at the end of the strike The Union amended its previous proposal (July 11) to allow for two escape periods—one early in the contract and one just prior to contract termination The Respond ent held to its Airguard proposal of July 11 No agree ment was reached 23 The 23d meeting Fepruary 3 1979 The parties met again under the auspices of the FMCS The Union proposed a 30 month contract with two escape periods one at mid term and one just prior to contract termination The Union wage proposal was 6 1/2 percent on February 27 1979 and 6 1/2 percent on February 27 1980 The 'Union proposed modifying the Respondent s vacation procedure to allow strikers to 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD count strike time as time worked for vacation eligibility and the striker replacements were to join the Union or leave the Respondent s employ The Respondent held fast to its Airguard union security proposal and reject ed the other union proposals The meeting adjourned without an agreement Analysis and Conclusions The General Counsel alleged in complaints 25-CA- 10106-2 and 25-CA-10106-3 issued September 29 1978 the following violations of Section 8(a)(5) 9 Commencing on or about May 10 1978 and at all times thereafter the Respondent did refuse and continues to refuse to bargain collectively with the Union as ithe exclusive collective bargaining repre sentative of all the employees in the unit described above in paragraph 8(a) in that (a) The Respondent negotiated with the Union in bad faith and with no intention of entering into any final or binding collective bargaining agree ment , (b) On or about May 10 1978 and at all times since the Respondent has (i) insisted on the right to solicit employees to resign their membership from the Union (a non mandetory (sic) subject of bargaining) and (n) maintained a fixed and inflexible position during negotiations by insisting upon the inclu sion of an escape clause in any collective bar gaining agreement reached by the parties (c) The Respondent has engaged in the conduct described above in sub paragraphs 9(a) and (b) for the purpose of undermining the Union and r destroying its majority status The General Counsel to prove his refusal to bargain case relies substantially on objective evidence exchanged between the parties during negotiations and subjective evidence of the Respondent s conduct much prior to the events present in this case The General Counsel argued that the subjective evidence was proper background and should be admitted making offers of proof The General Counsel contended that he is privileged to use pre 10(b) presettlement conduct of the Respondent as background citing Electrical Workers Local 613 227 NLRB 1954 (1977) The evidence was not admitted During the course of the trial the General Counsel appealed the ruling rejecting the offers of proof on the subjective evi dence of the Respondent s prior conduct The Board or dered the evidence to be heard and it was done Now I must consider the evidence in light of the substance of the General Counsel s appeal the Board order sustaining the appeal the allegations in the complaint the uncon troverted facts in the record and the argument of the General Counsel First the substance of the appeal as explication of the purpose relevancy and materiality of the proffered evi dence The General Counsel represented that the com plaint alleged Respondent insisted to impasse and there after in a fixed and inflexible manner on an escape period clause in any union security clause The una mended complaint allegation (see above) relates to the right to solicit employees to resign The General Coun sel then defines his purpose Specifically Counsel for the General Counsel sought to show that under guise of implementing such clause Respondent instructed its su pervisors to engage and through said supervisors did engage in a systematic illegal campaign to solicit with draw als [Emphasis added ] The clause referred to by the General Counsel is contained in the contract between the Respondent and the Carpenters (not a party to the instant case) during the years 1973 1974 and 1975 The instructions referred to occurred in the years 1973 1974 and 1975 and involved only the Carpenters The sys tematic illegal campaign to solicit withdrawals is pure speculation and could not be found to be otherwise due to Section 10(b) of the Act The General Counsel s sup plemental reference to a past history of such improper solicitation is likewise speculative and not admitting of a finding of illegality The General Counsel explains the relevancy as to show bad faith in making and insisting on such proposal show that Respondent s proposal was predictably unac ceptable to the Teamsters and could only have been of fered to frustrate negotiations (In this regard evidence has been proffered as to such illegal actions directed at a member of the Teamsters current bargaining commit tee ) Such relevancy to facts in the record or proof of relevant facts necessary to the case is negative rather than positive The uncontroverted facts show that the making of such proposal which by definition would relate to its genesis and more particularly when one s faith in the making is questioned originated in the Team sters proposal of March 14 1978 at the 14th meeting between the parties under the auspices of the FMCS The insistence on such proposal as shown by the record was at most times bilateral in an effort to reach agree ment The parenthetical reference to evidence offered which was directed at a member of the Teamsters bar gaining committee is not in the record The General Counsel also represented that the identity of the prior union (Carpenters) is irrelevant due to the hostility the Respondent exhibited toward the Teamsters as found by the Board in a prior case involving the same two parties (Respondent and Teamsters) I fail to see what influence the Respondent s stated hostility has to a determination of relevancy or materiality of conduct in volving an alien to the case In brief the General Counsel renewed his offer of General Counsel Exhibit 50 (a prior contract between the Respondent and the Carpenters) In my view the Carpenters contract is not included in the Board s order to take certain evidence of the General Counsel with re spect to paragraph 9 of the complaint This view is in part based upon the lack of any specific reference to the contract (a rejected exhibit) in the General Counsel s appeal The complaint allegations on their face may appear re lated to the substance of the background evidence in volving the Carpenters but the relation stops there The KELLER MFG CO 799 allegations stand alone with no substantive evidence in the record to support them There is no evidence that the Respondent insisted on a right to solicit employees to resign their membership from the Teamsters The evi dence in the record does show that the Teamsters at the 15th meeting on April 17 1978 proposed a union secun ty clause which incorporated language allowing either party to notify employees of the operation of the mem bership sections of the union security clause The Re spondent proposed adding to the clause a section defin ing escape periods as previously proposed by the Teamsters (see reference to Hobarts supra) The par ties bargained without reaching agreement on the Ian guage of an escape clause Subsequently the Teamsters reverted to a full union security proposal then proposed a maintenance of membership for the employees on the payroll before the strike and compulsory membership for all employees hired after the strike and incorporating a 30 day escape period The escape period was later amended by the Teamsters to allow two escape penods during the contract The Respondent dunng this time frame withdrew its proposal for escape periods in the union security clause and substituted therefor the identi cal clause in the Airguard contract 52 With respect to a fixed and inflexible position during negotiations by insisting upon the inclusion of an escape clause the record shows the advent of an escape clause attributable to the Teamsters in their proposal of March 14 1978 by the reference to Hobarts Subse quent negotiations disclosed several escape proposals from both parties evincing flexibility rather than inflexi Wit), In short the record evidence does not sustain the allegations as to nature of position or insistence of mclu sion Arguably a seed for escape periods was planted by the Respondent in the parties sixth meeting on De cember 16 1977 but the Teamsters cultivation of that seed was the basis for the proposals between the parties Thus no proven acts of the Respondent that are substan tial enough to be found unfair labor practices exist Even assuming which I do not that bare allegations of certain conduct standing alone are sufficient to provide the basis for considering background evidence to supply intent and motivation the existence of the intended and moti vated acts themselves must be proven independently This the General Counsel has failed to do In my view a causal relationship must exist between the suggested background evidence and the acts subject to invalidity no acts no background 53 The General Counsel has argued the admission and consideration of the proffered background evidence in terms of Board practice and policy citing several Board cases and making particular reference to the prior Board case involving these same parties The General Counsel admits to little or no animus within the 10(b) period but argues that the events in the pnor Keller case must be considered in assessing the 8(a)(5) violation Particular reference is made to the 2 As noted earlier the Teamsters represent the employees at Airguard Industries Inc of Louisville Kentucky 33 Several facts recited by the General Counsel do not exist in this case even to the extent of being in dispute threat to close the plant rather than submit to a union shop provision The actual utterance was closed shop and found by the administrative law judge to support statements made by supervisors to employees in violation of Section 8(a)(I) The General Counsel relates the sub stance of the proffered background evidence to the Board s use of the April 4 1977 summary memorandum in the prior Keller case The General Counsel states that the Board found the later actions of the Respondent to be true (presumably that the Respondent intended to so licit employees to withdraw from the Teamsters as evi denced by the Apnl 4 1977 exhibit) In fact the Board found the subject summary supportive of its inference that the disciplinary procedures were discriminatorily en forced 54 The General Counsel argues that it has never been shown that the Respondent abandoned its avowed intention In my view it is most critical that it has not been shown that such an avowed intention if any con tinued or is present in the instant case The General Counsel has the burden of proof to show that such intent carried into the 1978 negotiations to support his bad faith allegations No such proof is in this record Although the General Counsel correctly states that findings in the prior Keller case are not subject to dispute such prior findings are not automatically admissible for any use in subsequent proceedings There must be some link The Board s finding that the Carpenters strength dissipated and they no longer attempted to represent the employees is one thing but to speculate that something caused the Carpenters to lose its membership and then attempt to supply that something as background in the instant case is impermissible Such a procedure would require that the background evidence in this case supply the retrospec tive intent and motivation for an act found in the prior Keller case and extend that same intent and motivation (through the prior finding) to the instant case That is not only pyramiding presumptions but cases and their findings as well The fact that the proffered background conduct was alleged to be an unfair labor practice in 1975 is unavailing to the General Counsel simply because the case was settled by the General Counsel with satis factory compliance by the Respondent Therefore no unfair labor practice was found nor remedied The record herein discloses that the Regional Director in framing the compliance required did not remove the escape period from the Carpenters contract but rather changed the escape month from May to March leaving intact the clause allowing notification to employ ees of withdrawal of membership means Additionally no attempt was made by the General Counsel to set the prior settlement aside for lack of compliance and litigate the conduct on its merits (in spite of the General Coun sel s reference to a possible failure of compliance in the text of his appeal to the Board) Albeit the General Counsel contends that the proffered background conduct was illegal no such finding was made when timely The General Counsel is confusing the use of back ground evidence with the Board s practice of alluding to prior unfair labor practice findings to supply motivation 34 Keller Mfg Co Inc 237 NLRB 712 fn 11 (1978) 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and intent for subsequent acts charged as unfair labor practices Contrary to the General Counsel s argument the Board does not receive and consider all background evidence Nor is the Board s consideration the same when references to a prior unfair labor practice finding or to background evidence are made In an unfair labor practice instance neither the merits nor credibility of the prior finding is in issue The Board does stress in its deci mons and its practice the need for all the evidence avail able so the search for truth can approach completeness With this in mind the Board does allude to prior unfair labor practice findings to supply intent motivation and animus The Queen Mary case55 cited by the General Counsel in my opinion does not stand for the proposi tion that any anterior event may be considered when de termining conduct timely under scrutiny The Queen Mary case does show that it is within the province of the Board to determine what effect if any prior unfair labor practices may or may not nave on subsequent conduct of the parties In such 5a determination the Board considers the relationship between the anterior acts and the current acts In Queen Mary the Board was considering surface bargaining thus the threat that it would be 5 years before the company would agree to a contract was relat ed Likewise the attempted coverup by interfering with witnesses called to testify evinces an attitude not to accept its statutory obligations However that failure of attitude is not present in this case 56 1 do not find the General Counsel s reference to the sophistication of the Respondent s principal bargaining agent helpful or pro bative of bargaining attitude The General Counsel s burden must be supported by facts not opinions The General Counsel further argues that a respond ent s approach to bargaining can only be determined by viewing the totality of circumstances and equates the Board s language in Chevron Oil with acceptance of any and all background evidence 57 The record in Chevron showed that the company had an unmistakable aversion to union representation before the election Also the company delayed bargaining by engaging in several eva t sive tactics The Board found that the delaying tactics were affirmative evidence to evince that the company s hostility toward the union survived the election and thus supported its finding that the company was unwilling to accept and deal with the union in good faith The prior and current events were directly related to the bargain ing obligation and were strengthened by substantial vio lative acts of the company at the bargaining table More over the company s actions were continuous with little or no relief from the demonstrated attitude toward the bargaining concept The Supreme Court in Bryan Mfg Co supra has de lineated the proper focus where background evidence is under consideration by defining the standards to apply before consideration of the evidence The Board follows the Court s direction when evidence outside Section 10(b) is offered To do less would contravene the man 55 Queen Mary Restaurants Corp 219 NLRB 776 (1975) 6 Indeed even the Board split in Queen Mary on the Issue of surface bargaining 57 Chevron Oil Co 182 NLRB 445 (1970) date of Bryan Mfg Co Accordingly I conclude that the evidence offered by the General Counsel as background cannot properly be considered and moreover if it were considered it would find no substantial support within the 10(b) limits in this record The General Counsel s orally argued authority for ad mitting presettlement conduct Electrical Workers Local 613 supra) in my view settles the issue completely The Board in Electrical Workers Local 613 affirmed the admis sion of presettlement conduct where the settlement agreement had not been set aside by the Regional Direc tor thereby modifying the rule of Larrance Tank Corp 94 NLRB 352 (1932) with the Joseph s Landscaping Serv ice rule 58 In Joseph s the Board permitted the introduc tion of presettlement conduct as background evidence to establish the motive or object of respondent in its post settlement activities The crucial element in all these cases is the identity of the parties t6 the settlement agree ment and the identity of the parties to the postsettlement litigation They are the same parties There is no substi tution of parties between the settlement agreement and the litigation Indeed if there were substitutions the in tended use of evidence to establish motive or object would fail from lack of continuity and logic The General Counsel argues alternatively that the Respondent has violated Section 8(a)(5) by its prolonged refusal to offer any form of union security clause during negotiations and renews his motion to amend the com plaint 59 The argument cites Roanoke Iron & Bridge Works 160 NLRB 175 (1966) stating It is certainly noteworthy therein that the decision that the respondent violated Section 8(a)(5) of the Act was based in part on a checkoff provision which had been granted the company union ap proximately three to four years before the bargain ing events which were found to constitute a viola lion of Section 8(a)(5) of the Act The Board in the Roanoke case found that respond ent s failure to grant checkoff to the incumbent union was a device to frustrate bargaining The Board did not consider the lapse of time between the presence of the unions but rather considered the respondent s defense of its failure to grant checkoff in light of the fact that checkoff had been granted previously to an independent union The respondent s argument was unsupported by the facts i e the respondent treated the two unions dif ferently when considering a checkoff provision If the Roanoke case has any application to the facts of this case it is that the Respondent has not acted inconsistently with two unions and therefore has not violated the Act by its refusal to offer a union security proposal Consid ering the proven fact that the Respondent did not until later in bargaining propose or counterpropose some form of union security I conclude and find that the Re spondent s refusal to offer a union security proposal to the Union (whether prolonged or not) does not consti 58 Laborers (Joseph s Landscaping) 154 NLRB 1384 (1965) 59 I reaffirm my denial of the General Counsel s motion to amend the complaint KELLER MFG CO 801 tute bad faith bargaining Frick Co 161 NLRB 1089 (1966) The Board acts to oversee and referee the con duct of the parties engaged in collective bargaining but leaves the results of the efforts to the relative bargaining strengths of the parties Particularly the Board leaves the existence or nonexistence of specific proposals to the parties themselves for the value of a contract (good or bad) cannot be dictated by the Board Accordingly I find that the Respondent has not vio lated Section 8(a)(5) as alleged and will recommend dis missal of the complaint D The Strike Events 1 Economic or unfair labor practice strike Cassie Barnum a discrimmatee from the prior case testified that she attended the April 23 1978 meeting Moxley went over parts of the contract that had been offered We voted on it and rejected it then we had a vote for a strike we took a vote and that was to get per mission from the International Union to go on strike if we decided to Barnum although a discnminatee in the prior Keller case had been reinstated prior to the advent of the strike and was currently an employee at the time that the union meetings were held and negotiations were in progress She joined in the strike with the other em ployees and walked picket Later in the strike she became a picket captain The membership at the April meeting voted to seek authorization from the Internation al Union to go on strike and also voted to reject the Re spondent s latest contract offer Barnum also attended the May 13 1978 membership meeting She stated that Moxley read the entire contract proposal word for word and then the membership voted on whether to accept the proposal or not Barnum stated that everyone in attendance at the meeting knew that the employees would be on strike if the Company s proposal was rejected The strike began with picket signs supplied by the Local Union with the legend Local 89 On Strike Later in the strike sometime in September 1978 an addi tional sign was added to the picket line although it did not replace the Local 89 On Strike signs Barnum did not know how many of either signs were on the picket line at any given time Barnum testified that the two pre viously mentioned signs were the picket signs carried by the pickets throughout the strike until November 20 1978 At that time all signs were taken down and re placed with signs reading Lockout The Lockout signs were the only picket signs until November 27 when the strike ended Betty Haub a discnminatee from the prior Keller case testified that she attended both the April 23 and May 13 union membership meetings However she could not re member anything that happened at either of the meet ings Approximately 3 weeks after the strike started Larry Moxley told Haub that anyone could walk picket but she as a discriminatee and not an employee of Keller could not receive any strikers pay In spite of that she did join the strike after she received her letter of rein statement from the Company approximately August 30 Haub testified that of the 19 discriminatees in the prior Keller case she and 2 others actually joined the strike and walked picket She did not name the other two dis cnminatees Haub also testified that even though she was in attend ance at the April 23 and May 13 meetings she did not have any voting rights either to accept or reject the Company s proposal or to go on strike The reason she could not vote is she was not considered an employee of the Company by the Local Union Hannah Gilliland testified that she attended the mem bership meeting of April 23 The members in attendance at the meeting were very much interested in the contract proposal They would ask questions and they mostly talked about the union security clause and that is what they were really disturbed about and that s why they really wanted to go on strike was because of union secu nty Moxley told the people that this was a strike vote if they wanted to have a strike they would vote yes and if they did not want the strike they could vote no but they have the privilege to vote either way they wanted to vote Gilliland also attended the May 13 meeting held on Saturday At the meeting Moxley read the entire pro posal of the Company clear through Bonny Watkins one of the members in attendance who appeared to be drunk kept shouting from the floor Let s get down to the nitty gritty Betty Draper another employee in at tendance stated It appears it would be just like the Carpenters and no good Following the reading of the proposal the membership took a vote The members voted to reject the contract proposal and to begin the strike Gilliland joined the strike and walked picket just like the other employees She recalled that the picket sign at the beginning of the strike was Teamsters On Strike Local 89 She also recalled that sometime during the course of the strike unfair labor practice signs went up but she did not know when After the meeting with the Company on November 20 the pickets took down the signs they had been carrying that is Teamsters On Strike Local 89 and the unfair labor practice signs and replaced both with the Lockout signs During the strike week of November 20 to November 27 the only signs on the picket line were the Lockout signs Gilli land recalled that the meeting was called by a sign posted on the board at work which read Union meet ing at school house Gilliland stated that there was no discussion of picket signs or the legends on the picket signs at any time either at union meetings or while the pickets were walking the picket line Sharon Snyder the recording secretary of the Team sters testified that she kept minutes of the union meet ings particularly the Apnl 23 and May 13 meetings Snyder stated that the April meeting was held on Sunday beginning at approximately 2 p m and attended by 330 people Moxley chaired the meeting and read the company proposal to the members After the reading of the proposal there was some discussion on various clauses in the proposal and then the membership was asked to vote on acceptance or rejection The bargaining committee in attendance at the meeting stated to the membership that they could not recommend acceptance but that each member had to vote his own way on 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whether he accepted or rejected the company proposal In addition to voting on acceptance or rejection of the Company s proposal the membership was also asked to vote on receiving strike authority from the International Moxley explained to the membership that these ballots were the authority to call a strike if we had turned down a proposal or whether we should go back in nego nations it would be up to the membership He made it clear to the members assembled that he did not call a strike that it would be up to us The first ballot was strike authority from the International The second ballot was acceptance or rejection of the company offer The first ballot for strike authority resulted in a majority wanting to seek authority from the International The second ballot was a rejection of the Company s proposal with 306 no votes and 24 yes votes After the balloting on the rejection of the proposal Moxley stated to the members that the committee would go back and try to do better The second membership meeting was held Saturday May 13 at approximately 8 a m Moxley again chaired the meeting and introduced Norman Hug the treasurer of the Teamsters Local Union Moxley again read the entire proposal word for word to the employees assem bled Hug discussed the terms of the offer by the Compa ny with particular reference to the wages and the eco nomic package included therein Moxley then recom mended to the membership that they turn down the offer because the union security and other clauses in the con tract were not acceptable to the Local Union Both Hug and Moxley explained to the membership that if they turned down this contract offer it was the authority for a strike Hug stated to the membership that the Interna tonal would pay strike benefits if they voted to reject the offer and to go on strike The question put to the membership was Do you accept this last offer yes or no9 The tally was 210 for rejection and 34 for accept ance Moxley stated to the membership as soon as the tally was made that as of that time there was a strike at the Keller plants at Corydon and New Salisbury John Weintjes a union organizer brought in the strike signs that the Local had previously contracted to be painted At that point the members dispersed to Corydon and New Salisbury to establish the pickets Snyder began picketing but within a month was put in charge of strike headquarters working 10 hours a day 6 days a week The first picket signs used read On Strike Teamsters Local 89 Against Keller Mfg Later in the strike unfair labor practice signs were added to the picket line Snyder stated that the unfair labor practice signs appeared on the picket line in conjunction with the Teamsters Local 89 signs sometime after the October 15 membership meeting When the unfair labor prac nee signs were added to the picket line no other signs were removed There had been no discussion among the pickets or the union membership at any of the meetings relative to the addition of the unfair labor practice signs to the strike Moxley did tell the members assem bled at the October 15 meeting that the strike was now an unfair labor practice strike Sara Sizemore a discnminatee from the prior Keller case testified that she attended the May 13 meeting at which approximately 250 employees were present The union committee present at the meeting gave their views of the Company s offer Moxley told the members of the changes in the proposal from prior proposals and told the members they would be voting whether to accept the changes or not The membership present knew the vote was to accept the proposal or strike Sizemore knew there would have to be a two thirds majority not to accept the proposal before there could be a strike At the final tally there was more than a two thirds majority rejecting the proposal and thereby voting to strike Size more although in attendance at the meeting did not speak to the group Sizemore picketed at the New Sails bury plant where the picket signs read Local 89 On Strike Sizemore recalled that maybe sometime in August additional signs were added to the picket line reading Keller s Guilty of Unfair Labor Practices Moxley testified that the crux of the April 23 meeting was to have two ballots The first ballot was to be the authority to the International to call a strike if the mem bership turned down the Company s proposals The second ballot would be membership voting on accept ance or rejection of the Company s final offer At that meeting the membership voted to seek the International s authority to call a strike and thereby be sanctioned by the International and on the second ballot rejected the Company s offer After the tally was finalized Moxley told the membership in attendance that we would go back and resume negotiations and try to do better Larry Moxley the union representative testified that he chaired the membership meeting held on Saturday May 13 1979 beginning at approximately 8 a m and ending approximately 10 15 am and held in the high school building The membership had been advised of the meeting by notices posted in the plants on Thursday May 11 Between 240 and 250 employees attended the meeting Moxley began the meeting by reading the entire company proposal which took approximately one and a half hours After reading the proposal individual mem bers from the floor had questions on the clauses In each instance Moxley and the committee attempted to explain their understanding and what the clause would mean to a contract Moxley testified The membership was inter ested in more money more vacation but they were pn manly interested in how they were going to be treated there on the job and the union security clause Moxley further testified Q Do you recall anything other than what was in the contract being discussed at that time9 A There was somebody on the floor asked about the employees that had been terminated or unfair labor practice charges in the past you know back in the other cases I can t recall right now who it was Q Do you recall anymore about that9 A I think Betty Haub was there at that meeting It could very well have been her that asked that question Q As to what? A As to what about those people that were ter minated prior or during the campaign KELLER MFG CO 803 I Q And after that time did the Union take any action insofar as a vote was concerned? A Yes we took a vote that particular day to reject or accept the Company s offer Moxley stated that he reminded the membership of the International Union s constitutional requirement that con tract offers are to be read in their entirety to the mem bership and if the membership rejects the company offer then the employees are on strike Moxley when asked what his recommendation or statement to the member ship prior to the voting on acceptance or rejection was testified The one issue was the union security and the people were asked to strike on the language and wording of that clause alone Moxley stated that after the tally of ballots was complete he told the membership that then and there they were on strike at Keller Mfg Company Alice Myers a discriminatee from the prior Keller case testified that she did not attend the April 23 or May 13 meetings However she did at some point in September join the strike and walked picket with the em ployees She noticed the addition of the unfair labor practice signs on the picket line about the third week in September She did not know of any employee meetings to discuss the Board s decision (issued in August) nor was she aware of who if anyone made the decision to add the unfair labor practice signs to the picket line Myers walked picket at the Corydon plant on November 27 and stated the picket captain told the pickets that the signs were to stay up until 4 p m after which there would be no strike Analysis and Conclusions The General Counsel alleged that the strike which began on May 13 and ceased on November 27 was caused and prolonged by the unfair labor practices found in the prior Keller case and the unfair labor practices al leged in the instant complaints The dichotomy of the General Counsel s argument dis closes that his theory includes prolongation and cause based on the unfair labor practices (particularly the discharges) alleged prior to the strike and the Board s findings of discriminatory discharges in August during the strike Additional prolongation is argued based on the allegations in the various instant complaints The General Counsel argues inter aim It need only be shown that the employees were prompted or motivated to engage in the strike because of unfair labor prac tices 60 it must be reasonably concluded that at least those named individuals (Haub Sizemore Myers and Barnum) participated in the strike because of the Re spondent s previous uncured unfair labor practices Betty Haub walked picket before getting her recall letter and therefore one can conclude she had no reason to strike aside from a motive against the unfair labor practices the unfair labor practices in this case are so broad in SS At the tnal the General Counsel made several offers of proof on testimony of discrumnatees in the prior Keller case The offers were re jected The General Counsel in brief (fn 24) objects further to the rul ings I reaffirm my rejection of the offers of proof scope so egregious in character it is obvious they affect ed virtually every employee and it must be presumed the employees struck because of the unfair labor practices and if Section 8(a)(5) violations occurred during bargain ing then the strike is by absolute necessity an unfair labor practice strike The General Counsel cites several cases in support of his arguments all of which I view as not supportive of his case Not because I think he has overstated the law but because the necessary factual foundation for applying the law of each of the cases is not present in this case To state it another way when the Board makes a find ing it must be based on proven facts in the record and presumptions in support of the findings must likewise be based on proven facts in the record As the Board stated in one case cited by the General Counsel 61 The principle is well established that employees may be entitled to the special reinstatement rights provided unfair labor practice strikers even though the strike activity may have been motivated by con cerns which went beyond their employer s commis sion of unfair labor practices so long as it can be determined from the record as a whole that the unfair labor practices contributed in part to the em ployees decision to strike The Board continues referring to its footnote 4 of Larand Leasurehes 213 NLRB 197 (1974) and quoting Even assuming arguendo that the Administrative Law Judge was correct in asserting that the dis charge of Bell and Brown [not alleged to be unlaw full was a primary cause of the strike such a find ing would not warrant a conclusion that the strike was an economic strike in view of the convincing record evidence that the employees decision to strike was also occasioned by the Employer s nu merous unlawful acts Thus as we have elsewhere pointed out when it is reasonable to infer from the record as a whole that an employer s unlawful con duct played a part in the decision of employees to strike the strike is an unfair labor practice strike The Board found in Colonial that the strike was an unfair labor practice strike stating it is clear from the facts found by the Adminis trative Law Judge and detailed above that Re spondent s unfair labor practices clearly contributed to their desire to take the concerted action of en gaging in a strike Conceptually the Board requires that the cause of the strike or the objectives of the strike be connected to the unfair labor practices Additionally the Board requires the subject unfair labor practices to be close in time with the strike and has specifically found remote unfair labor practices not to be provocation for later strike activity Where no causal connection exists there can be no unfair labor practice strike Si Colonial Haven Nursing Home 218 NLRB 1007 1009 (1975) 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This record both in part and the sum of its parts evinces a single cause for the strike beginning May 13 and ending November 27 That cause is the Respondent s contract proposal albeit the employees were faced with two such contract proposals One on April 23 when as a body they sought International Teamsters approval if and when they went on strike and rejected the contract proposal before them two on May 13 when the single question of accepting or rejecting Respondent s latest contract proposal was put to a vote Moxley s statement to the assembled employees on April 23 after the propos al was rejected to wit We will go back and try to do better is instructive to my determination 62 The Team sters positioned themselves at that time to strike if con cessions on wages and union security were not met by the Respondent The General Counsel in brief admits that the Respondent anticipated a strike on April 23 due to the issue of union security as it existed between the parties Albeit there is a scintilla of evidence that a single reference was made at one meeting (May 13) to the prior alleged discriminatees the reference is vague 63 and only counts for 1 of the 19 alleged discharges (The General Counsel argued in brief that one or more employees asked about the discnminatees in the prior case ) More over of the 19 only 3 participated in the strike and 2 of those waited until the strike was half over before joining Barnum the fourth prior discnminatee had been rein stated before the strike began therefore she was on the payroll at the time of the strike In any event she was mute on any reference to her personal unfair labor prac tee charge Unfair labor practices as provocation for strike activity must be more than a source of dissatisfac non They must be one of the assigned reasons for stnk ing Even assuming arguendo that some reader of this record could find factual support for a refusal to bargain violation based on the Respondent s conduct in bargain ing there would not be a causal relationship as a matter of law between the refusal to bargain and the strike 64 The Respondent s argument that the strike for all pur poses was unprotected because the Union was seeking an illegal union security clause from the Respondent is wholly without foundation and rejected The strike from its inception was based on the Respondent s proposals and does not lose the protection of the Act because the Union s position in bargaining may be subject to criticism other than causation of the strike In view of the above and based on the record as a whole I conclude and find that the strike which began on May 13 and ended on November 27 was not an unfair labor practice strike but rather was an economic strike O I am mindful of cases where the union s frustration at the bargaining table can be viewed as cause for a strike but those cases involve surface bargaining which is not in issue in this case nor does the record evidence show surface bargaining on the part of the Respondent 53 See John Cuneo Inc 253 NLRB 1025 (1981) wherein the Board citing Typoserwce Corp 203 NLRB 1180 (1973) stated Board law holds that an unfair labor practice strike does not result merely because unfair labor practices precede the strike Rather there must be a causal connection between the two events which demonstrates that the strike is the direct outcome of the unfair labor practices 6 Capital Rubber Co 198 NLRB 260 fn 1(1972) caused solely by the employees dissatisfaction with the Respondent s contract proposals Accordingly I shall dismiss the unfair labor practice strike allegation con tamed in the several complaints Further I conclude and find that the record is void of any causation for prolongation of the strike either subse quent to the time any alleged unfair labor practice in the instant case occurred or subsequent to the Board s find ings of unfair labor practices in the prior Keller case I reject Union Representative Moxley s statement at the October 15 membership meeting to wit The strike is now an unfair labor practice strike as evidence that the strike was converted to an unfair labor practice strike In my view more is needed to convert such a strike There fore I shall dismiss the unfair labor practice strike allega tion based on prolongation of an otherwise economic strike In so finding the above I specifically conclude and find that the strike ran its natural course with no in fluenced deviation from May 13 until November 27 2 Offer to return The record evidence supporting this issue consists of several employee meetings during the course of the strike and several letters issued both by the Company and the Union The substance of the meetings were testi fled to by employees and Union Representative Moxley and is not placed in dispute by Respondent The several letters were received as the General Counsel s and the Respondent s exhibits without objection and therefore exist as objective evidence Where a factual issue does exist e g in the two confrontations between strikers and the Company on November 20 and 27 I have resolved that either by credibility resolution or inference as to the most plausible circumstances During the course of the strike the striking employees met with Union Representative Moxley on November 19 Moxley told the people at that meeting that everyone there and all the others should go to the Respondent s Corydon plant the following morning November 20 at 6 a m for the purpose of making an unconditional offer to return to work Cassie Barnum a striking employee testified Larry Moxley said that at this time he thought it would be best if we made an unconditional offer to return to work the people were not happy they felt that we had been on strike for nothing and we were going back for nothing and they just weren t happy at all but they would do it Alice Myers a striking employee recalled that Moxley suggested that some employees may not want to return to work Those who did not want to return that was their business The ones who did want to return were to meet him and Wientjes at the Corydon plant at 6 a m to make an unconditional offer to return There was little or no discussion among the employees present at the meet ing about the decision to return to work There was no question placed before the members present nor was a ballot taken KELLER MFG CO 805 As Moxley testified I told the employees we should try to go back to work and settle things by working and negotiating at the same time The following morning November 20 at 6 a m ap proximately 200 to 250 striking employees accompanied by Moxley and Wientjes approached the Respondent s north gate The group included several discrimmatees from the prior Keller case At this time the picket signs came down and picketing ceased Moxley and the em ployees were met at the gate by Bob Stepro and Marvin Miller A colloquy ensued in which Moxley told Stepro that he was offering the return of all the strikers plus the 19 unfair labor practice discnminatees Stepro at one point in the conversation asked if Moxley had a list of all the people or could he give the Company the names of the people who were returning Moxley simply repeated all the people who were on strike as of May 13 and the 19 discnminatees from the prior unfair labor practice cases Moxley and the General Counsel s witnesses testi fled that Moxley specifically stated unconditional offer to return The Respondent s witnesses Stepro and Miller specifically deny that Moxley used the word un conditional Stepro told Moxley that he and the group of employees had taken the Company by surprise and they were not prepared It would be better if the em ployees reported back on November 27 at 4 p m Moxley then turned to the group and told them that the Employ er was locking them out He said You have been locked out At this point the employees turned and left the plant and when they reached the point of the picket line once again they began picketing The Local 89 picket signs and the unfair labor practice signs were not reinstated but signs claiming Teamster Lockout were supplied and placed on the picket line That same day the Company prepared a letter to the Union which stated in part that all employees would be allowed to return as soon as the Employer could get production facilities ready The present week of Novem ber 20 being a holiday week was little time in which to prepare the employees return and the fact that no prior notice had been given aggravated the shortness of time The Company stated in the letter that the earliest time in which the employees could be processed would be No vember 27 and particularly if the Union would attempt to identify the employees by name to facilitate the place ment of employees in job classifications On November 22 the Union sent a letter to the Com pany stating in part that the Union was offering all em ployees who had been on strike including the prior dis crimmatees in the unfair labor practice cases recently de cided to return to work It was the Union s desire to ne gotiate after the employees were returned to work and the Union was submitting a list of all employees in volved It is uncontroverted that the list supplied by the Union was employee names with social security numbers containing several employees who had quit prior to the strike who had been terminated prior to the strike who had retired or were in the immediate process of retiring and some employees who were deceased The list showed that 565 employees on strike offered to return Of this number 7 were discnminatees from the prior Keller case out of a total of 19 The Respondent offered evidence that the list of stnk ers offering to return included 103 employees who had quit prior to May 12 1 employee terminated before May 12 2 employees who retired before the offer was made 2 employees who died during the strike 58 employees Who had abandoned the strike and returned to work before the offer was made 4 people unknown to the Re spondent and therefore not employees 4 duplications of names and 10 employees who quit during the strike These irregularities reduce the list of actual strikers to 381 The Respondent s evidence also showed that the seven discnminatees from the prior Keller case which were included in the list of striking employees offering to return had been previously offered reinstatement by the Respondent in partial compliance with the Board find ings 65 Approximately 200 to 250 employees appeared at the Respondent s Corydon plant on November 27 at 4 p m including several discnminatees from the prior Keller case Moxley and Wientjes were present as spokesmen for the striking employees and the Company was repre sented by Leland Cross attorney Bob Stepro and Marvin Miller among others Although there is some dispute as to what was actually said between Moxley and Cross prior to the employees returning to work Moxley in his testimony as well as several of the General Coun sel s witnesses agrees that the Respondent and the Union endeavored; to get everyone back to their original shifts that is their prestrike classification The General Coun sel s witnesses testified that the Respondent represented that all striking employees would be back to work back on their original shift and back on their original classifi cation within 5 to 10 days The Respondent s witnesses deny that any time limit of any kind particularly 5 to 10 days was part of the discussion much less any part of an agreement by which the returning striking employees would be put back on the job When the discussion be tween Moxley and Attorney Cross ended the Respond ent passed out little slips of white paper to each of the striking employees on which they were to list their name their home address and their prestrike job or clas sification After the papers were filled out the Respond ent announced that the employees would be divided into two groups by their respective plants One group of em ployees went to one section of the Corydon plant and the other group of employees went to another section of the Corydon plant The Respondent proceeded to proc ess the returning employees and did so until approxi mately 9 p m At 9 p m there were 40 some odd employ ees who had not been placed on the job and the Re spondent announced to those employees that they should go on home and they would be contacted by the Em ployer as soon as a vacancy could be located to put them in With the exception of several employees who were out of town or who had not actively engaged in the strike the last few days all the employees who were re turning and abandoning the strike had been processed by the Employer to some point on November 27 The Re 65 The prior chscriminatees had declined reinstatement at the time of the company offer choosing Instead to assume the status of a striker 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent and the Union agreed to send a letter to those employees who had not presented themselves and placed a limit of 5 days upon reply The letter was a joint yen ture in terms of substance and was mailed by the ,Compa ny to the employees at their last known address The Company sent the 5 day letter on November 28 to all employees who had been employed prior to May 13 and who had not applied for reinstatement after the end of the strike The letter stated in part that the strike had ended and most employees had returned and if the ad dressed employee was desirous of returning to work in his old job he should do so within 5 days The final piece of evidence dealing with the offer and return of the employees is a company letter dated De cember 8 1978 and addressed to the Union The sub stance of the letter in part states that one of the employ ees who had been mailed the 5 day letter had not re ceived it since it had been returned by the post office The Respondent assumed that the mailing address was in error and asked the Union for a more current address if possible The letter further stated that even though it was past the 5 days the Union was aware that the Re spondent was not enforcing the 5 day period in which any striking employee must report to be able to return to work The uncontroverted evidence and the business records show that 195 employees returned to work as directed on November 27 An additional five employees reported to return to work on November 28 and 29 The Re spondent s processing of the employees on November 27 resulted in 125 employees being placed back on jobs on that day Tuesday November 28 an additional 45 em ployees were placed on jobs And on the following day Wednesday an additional 23 employees were placed on jobs In addition any employee who presented himself to the Respondent subsequent to November 29 and offered to return to work was in fact put to work As Marvin Miller had stated at the November 20 meeting We have jobs for all of you and as Attorney Cross had stated on November 27 All employees who want to work will have jobs Analysis and Conclusion The General Counsel alleged in Case 25-CA-10436 paragraph 7(a) On or about November 20 1978 and November 27 1978 the employees employed by the Respondent at the facilities who had engaged in the strike re ferred to above in paragraph 5 made unconditional offers to return to their former or substantially equivalent positions of employment The General Counsel in brief argues simply that there was a clear unconditional offer to return to work and the Respondent s obligations began at the moment such offer was made Although not controlling it is a factor to be consid ered that the General Counsel stated at the hearing that the majority of the returning employees had been rein stated to their former jobs The record evidence is void of any employees who presented themselves for work subsequent to November 27 and were denied reinstate ment for any reason To put it another way the Re spondent has accepted any offer from any employee or group of employees at any time since November 27 to return to work and has in fact placed the employees in a work status The Respondent argues that there is no unconditional offer since Moxley conditioned the offer to return on behalf of the striking employees on the inclusion of the 19 prior discnminatees in the previous Keller case The Respondent is apparently basing this argument on the fact that only some of the alleged discrimmatees in the prior Keller case were found by the Board in other in stances their discharges were upheld by the Board The record evidence discloses that several of the discnmina tees in the prior Keller case were offered reinstatement by the respondent when the administrative law judge issued his decision and several others were offered rein statement when the Board order issued A total of 13 dis cnminatees out of 19 were offered such reinstatement by the Respondent The record also discloses that several of the discrimmatees found by the Board are still being op posed by the Respondent in the Circuit Court In any event the original allegations in the prior Keller case listed 22 discriminatees Between the administrative law judge and the Board there were 19 discnminatees found Moxley in his stated offer to the Respondent on Novem ber 20 specifically said 19 unfair labor practices obvious ly making reference to the discnminatees found by the Board during the course of the strike I conclude that it would be unconscionable if the Board were to consider an offer for striking employees to return to work which included discriminatees previ ously found by the Board to be fatal because of their in elusion Additionally I rely on the fact that the Re spondent had previously offered reinstatement to 13 of the 19 to assess the Respondent s argument that the offer was conditional due to their inclusion The Respondent s alternative argument that no offer was made but rather a return to work agreement was made between the parties is wholly without substance and finds no probative sup port in the record I find therefore that the offer by in cluding the 19 discrimmatees as found by the Board pre viously cannot and does not void the offer to return made by Moxley on behalf of the striking employees as sembled at the plant 66 The Board requirement that an unconditional offer to return at the end of a strike be made before any obliga tions or liability on the part of respondent attaches is not based on semantics The Board only requires that the offer be expressed and be intelligible to the respondent In any case such as the case at hand the circumstances necessarily must influence any determination of whether a proper offer to return to work was made by the strik ers or on behalf of the strikers I conclude in the cir cumstances of this case particularly due to the number of strikers involved the preliminary basis such as the meeting on November 19 at which the decision to return 66 Several of the prior discnminatees were in fact strikers or had as sumed the status of a striker prior to the application to return to work KELLER MFG. CO . 807 to work was made, the mobility of the strikers in terms of changing their address and thereby not being readily available to the Union, that Moxley's offer to return was as express as it could be. Many offers to return are deter- mined to be unconditional offers to return based on the circumstances of what takes place when the employees are presented for reinstatement. There is no magic in the use of the word "unconditional"; no more than there is magic in the use of the word "conditional." The nature of the offer depends on its acceptance and implementa- tion. There are some cases where the respondent's under- standing of the offer made on behalf of the striking em- ployees has some influence on the ultimate determina- tion If that be the case, then the offer here was certainly unconditional. The Respondent's underned response, indeed the admitted response, was that "we have jobs for all employees who wish to return," and going even beyond that statement the Employer did in fact honor any offer to return by any employee made subsequent to the end of the strike. I, therefore, conclude and find that the offer made by Moxley on behalf of the striking em- ployees on November 20 was, in Board parlance, an un- conditional offer to return and created obligations and li- abilities on the part of the Respondent to reinstate those striking employees. Further, I conclude that the Re- spondent's obligations thereunder must be attenuated by the circumstances prevailing at the time of the offer. In excess of half of the Respondent's work force was out on strike and numerous employees had been hired during the strike to replace some of the striking employees. What had been a 2-shift operation before the strike, during the strike was a 1-shift operation, so that replace- ment employees were hired to fill positions mostly on the day shift. Although the Respondent's operation was not producing at 100-percent capacity of the prestrike day shift, it was producing with most classifications filled. Some 60-odd employees had abandoned the strike during the course of the strike and returned to work both to their former positions or other positions which they wished to have. The Teamsters, by failing to give any prior notification to the Respondent at the end of the strike, placed the Respondent in an untenable posi- tion. The Respondent was, during the strike, concentrat- ing on day production, and the presentation of the em- ployees, unannounced, at 6 a.m. on November 20, Monday of the week in which Thanksgiving fell on Thursday, administratively created a nightmare for the Respondent. The Respondent's response at the time the offer was made on November 20, I conclude, was both reasonable and fair under the circumstances The striking employees were told at the time to return on November 27 at 4 p.m. and the Respondent would place the em- ployees back to work. It is apparent from the Teamsters' action on November 22 in sending a letter specifically stating the unconditional nature of the offer and attach- ing a list of employees covered within that offer that the presentation on November 20 lacked some substance. Additionally, the presentation of November 20 was shown to be in substantial error. I do not conclude that striking employees who make an offer to return to work must have a complete list of the names of all employees included in the offer, but I am concluding that in a pro- duction atmosphere where many classifications are in- volved, before the employer can intelligently sustain his obligation to reemploy the employees, he must have some advanced notice of what work classifications the employees are returning to in order to fulfill his legal ob- ligation. Accordingly, I conclude that the Respondent had, based on the several offers, an obligation to rein- state, that is, return to work, all the striking employees who presented themselves on November 27, and thereaf- ter, including the 19 discriminatees previously found by the Board. 3. Reinstatement issue The General Counsel alleged in Case 25-CA-10436, paragraphs 7(b) and (d), the denial of reinstatement to striking employees offering to return to work, as follows: (b) On or about November 27, 1978, and at all times since, the Respondent has failed and refused, and continued to fail and refuse, to reinstate the employ- ees referred to above in subparagraph 7(a), to their former or substantially equivalent positions of em- ployment (d) The Respondent did fail and refuse, and contin- ues to fail and refuse, to reinstate the employees re- ferred to above in subparagraph 7(a), and 7(b) for the reason that said employees had joined or assist- ed the Union, or engaged in other concerted activi- ties for the purpose of collective bargaining or mutual aid or protection and/or had participated in the strike described above in paragraph 5. Facts, Conclusions, and Findings The Teamsters, as previously noted, offered some 565 employees back to work. The Respondent's rework of the striker list supplied by the Teamsters and, according to the Respondent's records, reduced that number to 381 Uncontroverted evidence of the Respondent places the total complement of both plants at 515. The record testi- mony of the General Counsel's witnesses estimates that 200 to 250 striking employees actually appeared at the plant for reinstatement following the end of the strike. The Respondent's testimony shows that 195 employees were present for reinstatement on November 27, and 5 additional employees presented themselves for reinstate- ment on November 28 and 29 The actual reinstatement of 125 employees took place on November 27 On No- vember 28, 45 more employees were reinstated; and on November 29, an additional 23 employees were reinstat- ed. Although the number of employees and returning strikers estimated by the General Counsel's witnesses is greater than the Respondent's records show, there was no real factual dispute. The General Counsel, in addition, conceded that the majority of the strikers offering to return were reinstated to their former positions. More- over, there was no allegation that the Respondent actual- ly refused to reinstate any striking employee offering 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD himself or herself for reinstatement 67 The stipulations in the record support the evidence of reinstatement both in numbers and purpose For example the parties stipulated that those employees hired during the strike were perma nent replacements for striking employees The objective evidence in the record shows that a total of 335 replace ment employees were hired during the stnke Albeit several employees testified to their individual reinstatement there was no testimony which tended to show anything other than a lawful reinstatement of a re turning striker Of the striking employees who did testi fy there was none who in the absence of being reinstat ed to their former classification was not reinstated to a substantially equivalent position In addition there was no evidence of any actual loss of wages except for that occasioned by unfamiliarity with the machine or the job assignment causing a time lag before an incentive rate could be realized In no event was such a time lag shown to be any more than that occasioned when any employee begins employment on a task for the first time The General Counsel s presentation of the reinstate ment issue was only viable if the strike were found to be an unfair labor practice strike Notwithstanding he did argue in brief that any unresolved reinstatement issue could be a matter left to backpay proceedings citing Automatic Plastic Molding Co 234 NLRB 681 (1978) Even if the bypassing of an issue was acceptable the Automatic case is unapplicable to such a prayer In the Automatic case the obligation of reinstatement had not at tached to respondent since the union s offer was condi tional and the number of strikers had not been litigated , That is not the situation in the instant case The Respondent s argument that it had no duty to re instate and therefore there could be no unlawful refusal to reinstate is apparently based on what it terms a return to work agreement and/or its position that the strikers have no reinstatement rights because the strike is unprotected fThe General Counsel specifically disavows existence of a return to work agreement particularly the failure Of specific performance thereunder Even if the evidence of the confrontation preceding reinstate ment on November 27 was not in dispute which is not the case I would place no more emphasis on the so called agreement than the General Counsel does 68 The strikers ceased picketing were offered by their represent ative to return and the Respondent reinstated all strikers making application The regularity of the reinstatement including the time consumed is controlled as a matter of law not by agreement between the parties My previous finding that the strike was economic and thereby con certed activity protected by the Act makes the Re spondent s alternative argument that the strikers have no 67 The General Counsel represented at the trial of this case that the allegations on reinstatement were based on a respondent s obligations fol lowing an unfair labor practice strike If the stnke is economic there has been no unlawful refusal on the part of the Respondent to reinstate re turning striking employees Also the record shows that any prior discn minatees who offered themselves for reinstatement were put to work as returning strikers 68 The record discloses not only ambiguities but variances rendenng the agreement unenforceable if it was to be considered reinstatement rights because the strike is unprotected un availing I conclude and find that the Respondent has in ac cordance with the prevailing case law reinstated all strikers making an unconditional application to return to work In so doing the Respondent has returned all stnk ers to their former position or a substantially equivalent position In those instances where a replacement occu pied the striker s former position I conclude and find that the position was filled by a permanent replacement and the Respondent has not unlawfully denied any re turning striker reinstatement to such a position 69 Ac cordingly I find that the General Counsel has not sus tamed his burden of proof on the reinstatement allegation and further that the Respondent has not violated the Act by its reinstatement of returning strikers CONCLUSIONS OF LAW 1 The Teamsters is and has been at all material times herein the exclusive majority representative of all em ployees of the Respondent for the purpose of collective bargaining within the meaning of Section 9(b) of the Act in the following bargaining unit All production and maintenance employees of the Respondent employed at its Corydon Indiana and New Salisbury Indiana facilities exclusive of office clerical employees all salesmen all professional em ployees guards and all supervisors as defined in the Act 2 On March 21 1979 the Respondent did construe lively discharge employee Billy G Patton and has failed to reinstate said employee since his discharge to his former position or a substantially equivalent position be cause he engaged in protected concerted activity thereby violating Section 8(a)(1) and (3) of the Act 3 The strike which began on May 13 and lasted until November 27 was an economic strike and was protected concerted activity 4 The striking employees through their union repre sentative Moxley made an unconditional application to return to work on November 27 and were reinstated by the Respondent to their former position or a substantially equivalent position of employment 5 The Respondent has a continuing obligation to bar gain collectively with the chosen representative of its employees pursuant to Section 8(d) of the Act 6 The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the meaning of Sec non 2(6) and (7) of the Act 7 The General Counsel has failed to prove by a pre ponderance of the evidence the allegations in the several complaints alleging interrogations threats of discharge reprisals for strike activity discriminatory discipline dis criminatory discharges discriminatory withholding of vacation pay discriminatory refusal to reinstate striking employees and refusal to bargain in good faith 69 Latdlaw Corp supra KELLER MFG CO 809 REMEDY Having found that the Respondent has engaged in cer tam unfair labor practices I find it necessary to order the Respondent to cease and desist therefrom and to take certain affirmative action designed to effectuate the poll cies of the Act The Respondent having constructively discharged Billy G Patton for discriminatory reasons I find it nec essary to order it to offer him full reinstatement to his immediately former position or if that position no longer exists to a substantially equivalent position with back pay computed on a quarterly basis and interest thereon to be computed in the manner prescribed in F W Wool worth Co 90 NLRB 289 (1950) and Florida Steel Corpo ration 231 NLRB 651 (1977) 70 from March 21 1979 the date of his constructive discharge to the date of proper offer of reinstatement [Recommended Order omitted from publication ] 7 ° See generally Isis Plumbing Co 138 NLRB 716 (1962) (